Covenants, Constitution & Commons - White Rose eTheses ...

Covenants, Constitution & Commons

International, constitutional, and community responses to achieve access to sufficient water for everyone

Nathan John Cooper

Doctoral Thesis in Law

School of Law

University of Sheffield

July 2016

[Insert access to thesis form x 2 pages]

For Sarah: Thank you

For Jesse Emanuel,

Finlay Joachim,

Wilfred Jude,

& Magnolia Ruth:

“How beauteous mankind is!

O, brave new world

that has such people in’t!”

Abstract

This thesis considers how best to achieve access to sufficient water for everyone in South

Africa. It encompasses international law, national (including constitutional) law and policy, and

finally community organisation, and the ‘vernacular law’1

of the commons.

The task of achieving sustainable access to sufficient water for everyone in South Africa is long-

standing and considerable, culminating in the inclusion of a right of access to sufficient water in

the 1996 Constitution.2

This right has simultaneously provided an overarching moral

framework (through the elaboration of relevant human rights norms), while remaining

decidedly remote from the experience of many people, for whom insufficient water remains a

daily reality.

Here, the ability of a right to water to effectively ensure access to sufficient water for everyone is

critiqued. In so doing, the practical and conceptual limits of ‘rights-talk’ are considered, in two

contexts in particular: International human rights law; and the jurisprudence of the South

African Constitutional Court.

Crucial to this thesis is a methodology of narrative inquiry, which analyses the stories of people

who suffer from access to insufficient water, revealing the disconnection between people’s right

to water, and their experience of living without the water they need. Flowing from this narrative

is an attempt to reconceive water governance from outside the structural and conceptual

closures of the dominant paradigm (characterised by individual rights and commodification)

and to explore the potential for alternative practical modes of governance to deliver greater

sustainability and equity, for communities living with water poverty.

In this thesis, through a blend of contemporary perspectives on vernacular law and multi-level

governance, postmodern theories on stories and subjectivity, and empirical observation, a fresh

contribution is made to the debate on access to water in South Africa.

Key words: Water, South Africa, (Human) Rights, Sustainable Development, Anthropocene,

Narrative inquiry, Constitutional Court, Constitutionalism, Commodification, Reasonableness

1

D Bollier & BH Weston ‘Green Governance: Ecological Survival, Human Rights, and the Law of the Commons’

(Cambridge University Press, 2013) 104. 2

Section 27 (1) (b) Constitution of the Republic of South Africa, 1996.

1

Contents

Contents 1

Acknowledgements 5

Publications 7

List of abbreviations 8

Prologue 10

1. Introduction 12

1.1 A right to water – definitions and clarifications 13

1.2 Aims and research questions 16

1.3 Methodological approach 17

Interviews: Purpose, methodology and method 19

1.4 Contribution to relevant academic debates 23

1.5 Understanding water paradigms 24

Water as life 24

Water as element(al) 25

Water as necessity 26

Global water 27

Water as commodity 29

Water as commons 30

1.6 Outline of thesis 31

1.7 Main argument and originality of thesis 35

2. Water governance at the international level 37

2.1 Introduction 37

2.2 History of a contested right 38

Conspicuous absence 39

The International Covenant on Economic, Social and Cultural Rights 43

The International Covenant on Civil and Political Rights 49

Emerging consensus and acceptance of a human right to water 53

The Cochabamba movement 55

2

2.3 The content of the human right to water 59

Constitutive elements of the human right to water 59

States Parties’ obligations 63

2.4 The right to water at a regional level 66

2.5 Water as a development goal 69

Water and the Millennium Development Goals 70

Water and the Sustainable Development Goals 72

Water and Sustainable Development 74

2.6 Effective international governance in the present and future global environmental 76

contexts

Social-ecological security and the exigencies of the Anthropocene 76

2.7 Chapter summary and concluding comments 78

3. Water in South Africa 82

3.1 Introduction 82

3.2 Access to water in South Africa; resources, scarcity and inequality 83

3.3 History of the development of water law in South Africa 87

1652 to 1994 88

1994 to the present 97

3.4 Wider factors influencing the changing shape of water governance in South Africa 106

Commercialisation 107

Integrated Water Resources Management 109


4. Socio-economic rights in the Constitutional Court 117

4.1 Introduction 117

Chapter outline 118

4.2 The legitimate role of the judiciary 120

4.3 Establishing a new constitutional ethos in South Africa 123

3

4.4 Role and structure of the Constitutional Court 125

Content and scope of the Bill of Rights 126

A new parliamentary model 127

4.5 The relationship between the Executive, the Legislature,

and the Constitutional Court 128

Mandela 128

Mbeki 131

Zuma 136

4.6 Case decisions on socio-economic matters: an illusive (transformative) narrative? 139

Soobramoney v Minister of Health 140

Government of the Republic of South Africa v. Grootboom 143

Manqele v Durban Transitional Metropolitan Council 152

Residents of Bon Vista Mansions v Southern Metropolitan Local Council 154

Minister of Health and Others v Treatment Action Campaign and Others 157

Mazibuko and Others v City of Johannesburg and Others 161

4.7 Critique 169

‘Judicial Managerialism’ or (legitimate) judicial restraint? 169

Transformative Constitutionalism 171

‘Liminal Constitutionalism’ 173

4.8 Reaching the limits of ‘rights talk’ 174


5. Water stories, community organisation and ‘commons thinking’ 181


5.2 Story-telling: Listening to people’s lived experiences 186

Enacting a methodology of narrative inquiry 188

‘The Medium is the Message’: the importance of narrative inquiry

for commons thinking 190

5.3 Stories from water-poor people – glimpses of the commons 191

A recap of the content of the right to water 191

Stories from rural KwaZulu-Natal 192

Stories from Durban 202

Stories from Malawi 207

Summary 215

4

5.4 The commons in theory and in practice 217

Historical and contemporary examples of communing 218

Critiquing the commons 224

Property and the right to water 229

5.5 Interrogating the inviolate: Property, commodification, and Human Rights 231

5.6 Challenges and solutions 237


6. Conclusion: Achieving access to sufficient water for everyone, forever 243


Structure 245

Reconnecting the local, the national, and the global 249

6.2 A note on originality 250

6.3 Pre/Postmodern hints towards hydro-socio-eco responsibility 251

Ubuntu, rights and commons 251

Revisiting water governance in the Anthropocene’s dark light 254

6.4 Limitations of this thesis, and future research directions 256

6.5 Concluding thoughts 258

Table of cases 261

Table of legislation 263

Bibliography 268

Appendices 288

List of interviews 288

Model information letter 290

Framework for semi-structured interviews in water-poor communities 292

5

Acknowledgements

Many people, in so many different ways, have helped me to research, write, and complete this thesis. I

am grateful to each of you:

Sarah, Jesse, Fin, Wilf and Maggie, thank you for your patience and for all the sacrifices you’ve made to

give me the time and space to write. I am sorry that, so often, I’ve had to “go to workies” rather than

spending time with you all. But thank you for cheering me on, and for believing in me.

Mum & Dad, and David & Erica, thanks for the many ways that you have helped us get through this

pressured time. Dad, I’m also grateful for all the hours you’ve spent proofreading my work, and for the

valuable insights and perspectives you have offered.

Mark Taylor, long before beginning this thesis, you affirmed my intellectual potential, and encouraged

me to pursue an academic career. You also gave me my first job in academia, without which, I would

not have got this far. Thank you.

Duncan French – supervisor, mentor, colleague, boss, and friend - thank you for all the ways in which

you have helped me to see this thesis through. Thanks for believing in me and in the importance of my

research: for championing me, supporting me and encouraging me throughout. Thanks also for your

example, which it is my ambition to emulate - managing to be an excellent scholar, and a good dad.

Louis Kotzé, sedert ons eerste ontmoeting was jou warmte, gasvryheid en vriendskap 'n groot vreugde en

seën vir my. Baie dankie vir jou belangstelling in my en my familie, en in my werk. Jou passie vir jou

navorsingsveld, en die uitmuntendheid van jou akademiese werk is 'n inspirasie, en dit is 'n voorreg om

as vriende en kollegas saam te werk. My opregte dank vir al die ure wat jy bestee het om my tesis te lees,

en om my aan te moedig om op koers te bly en die verdekselse ding klaar te kry! Mag daar nog baie

geleenthede wees om saam te werk, en glasies wyn saam te drink.

Richard Kirkham, your commitment to high quality and hard work has challenged me to raise my game.

I would not have finished this without your supervision. Thank you.

Matthew Hall, for generously giving your time and your expertise, and for encouraging me that it’s OK

for lawyers to tell stories! I am extremely grateful.

David Townend, thanks for hours spent debating property, human rights and morality. Your

commitment to legal scholarship as a moral endeavour has inspired and enthused me to continue my

work. Many of your thoughts have been woven into this thesis. I hope I do them some justice.

Sorcha MacLeod, for encouraging me to re-start when things had stalled, and for helping me to learn to

love writing again. Thank you.

I’m privileged to have been able to write this thesis alongside communities of scholars in several

institutions. Many thanks to each of the staff and PGR students at the University of Sheffield, School of Law, who helped me to hone my research focus, and encouraged me to keep going. Thanks to the staff

at Bishop Grosseteste University library, for kindly hosting me in the final stages of writing. My thanks

also go to Patrick Bond and colleagues at the Centre for Civil Society, at UKZN, and to everyone at

NWU Law department; for generously hosting me, and for inviting me to use your library.

Most of all, I’m grateful to my colleagues at the University of Lincoln, Law School. Thanks to each of

you who has encouraged me in my research, and has stepped in, so kindly, to help when I’ve needed to

travel. Sincere thanks also to Danielle Sowersby, for transcribing hours of interview dictation.

My thanks go to the staff and volunteers at YWAM Winterton, and YWAM Durban, for introducing

me to many different communities, interpreting for me, and generally looking after me. Your selfless

work, and your pursuit of justice and mercy are beautiful to see.

6

Water for People Blantyre: Thank you for hosting me, for including me in your work, and for

introducing me to so many wonderful people, and great ideas. I salute your dedicated efforts to secure

water for everyone, forever. May you succeed in all that you do.

Justice Zak Yacoobs, thank you for generously sharing your time and your huge experience with me.

The chance to discuss the work of the Constitutional Court with you has been one of the highlights of

this research.

Paul & Elaine Briers, witnessing first-hand, your love for the poorest people in South Africa, was the

catalyst for this research. Thank you for the profound example you set, of living to make the world

better.

Jennifer, Andrew, Nombuso, Siyabonga, ‘Gremmah’ Mbongwa, Sanele, Mbali, Mpume, Vosile, Elizabeth, Mr Kanthelall, Thandeka, Helen, Thembeka, Phindile, Sbo, Kate, Pastor Elias, and Francis: thank you all for telling me your stories, and sharing your wisdom.

7

Publications During the course of researching and writing this thesis I have published papers and articles on

various aspects of the right to water. I have developed many of these aspects further in this

thesis. The following are my key publications:

Cooper, Nathan John (2010) The limits of Integrated Water Resources Management and the Right to

Water: A Return to the Commons? The Physics and Chemistry of the Earth, Special Issue:

(http://www.waternetonline.ihe.nl/11thSymposium/WaterandSocietyFullPapers2010.pdf)

French, Duncan and Cooper, Nathan John (2012) The right to water in South Africa: constitutional

managerialism and a call for pluralism. In: Natural resources and the green economy: redefining the

challenges for people, states and corporations. Martinus Nijhoff, Leiden.

Swan, Andrew and Cooper, Nathan John (2013) Innovative funding methods for rural communities and

their water pumps. Water Resources and Rural Development, 1-2. 17-26;

Cooper, Nathan John and Swan, Andrew and Townend, David (2014) A confluence of new technology

and the right to water: experience and potential from South Africa's constitution and commons. Ethics

and Information Technology, 16 (2). 119-134;

Cooper, Nathan John (2015) After Mazibuko: Exploring the responses of excluded communities to

South Africa’s water experiment. Journal of African Law (in press February 2017).

Cooper, Nathan John (2015) Grassroots responses to water poverty: fertile spaces for ‘vernacular law’

between the state, market and courts. Southern African Development Community Law Journal (in press

Autumn 2016).

Swan, Andrew and Cooper, Nathan John (2016) Can SMART pumps help realise Sustainable

Development Goal 6? Engineering Sustainability (in press).

http://staff.lincoln.ac.uk/id/003087#research


http://eprints.lincoln.ac.uk/6738









8

List of abbreviations

ACHPR African Charter on Human and People’s Rights

AdA Compania de Aguas de Aconquija

ANC African National Congress

CEDAW Convention on the Elimination of All Forms of Discrimination Against Women

CESCR Committee on Economic, Social and Cultural Rights

CJ Chief Justice

CMAs Catchment Management Agencies

CODESA Convention for a Democratic South Africa

COP Conference of the Parties

CRC Convention on the Rights of the Child

DNA Deoxyribonucleic acid

DWA Department of Water Affairs

DWAF Department of Water Affairs and Forestry

DWM Developmental Water Management

ECI European Citizens’ Initiative

ECtHR European Court of Human Rights

ECOSOC United Nations Economic and Social Council

ESG Earth Systems Governance

FBW Free Basic Water

GC 15 General Comment Number 15 Committee on Economic, Social and Cultural Rights

GHS General Household Survey

HIV/AIDS Human Immunodeficiency Virus/ Acquired Immune Deficiency Syndrome

HRC Human Rights Committee

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic Social and Cultural Rights

ICSID International Centre for the Settlement of Investment Disputes

IFP Inkata Freedom Party

IMF International Monetary Fond

IPCC Intergovernmental Panel on Climate Change

IWA International Water Association

IWRM Integrated Water Resources Management

J Justice of the Constitutional Court

Kl Kilolitre (1000 litres)

lpd litres per person per day

MDGs Millennium Development Goals

9

NGO Non-Governmental Organization

NP National Party

NWA National Water Act

NWRS1 First National Water Resource Strategy

NWRS2 Second National Water Resource Strategy

NWU North West University

P President of the Constitutional Court

PAC Pan Africanist Congress

RDP Reconstruction and Development Programme

SAWC The South African Water Caucus

SCA Supreme Court of Appeals

SDGs Sustainable Development Goals/ Global Goals

SES Social-ecological security

TAC Treatment Action Campaign

UDHR Universal Declaration of Human Rights

UK United Kingdom

UKZN University of Kwa-Zulu Natal

UN United Nations

UNDP United Nations Development Programme

UNEP United Nations Environmental Programme

UNGA United Nations General Assembly

UNICEF United Nations Children’s Emergency Fund

US United States

VOC Verenigde Oostindische Compagnie

WFP Water For People

WHO World Health Organization

WMA Water Management Area

WSA Water Services Act

WUA Water Users Association

YWAM Youth With A Mission

ZACC Constitutional Court of South Africa

ZAHC High Court of South Africa

ZAR South African Rand

10

Prologue

I first visited South Africa in 2003. But my sense of connection with the country began much

earlier. As a child in the ‘80s watching Channel 4 News with my parents, images of violent

clashes, bombs and police clampdowns – which with hindsight were the death throes of

apartheid - formed part of my regular diet. As a ten-year-old I watched Nelson Mandela walk

free from Victor Verster Prison, and on my fourteenth birthday, April 27th

1994, I followed as

the ANC won victory in the country’s first all-party general election. The anticipation and

excitement around the rebirth of South Africa as the ‘rainbow nation’ was palpable and

intoxicating to the teenage me, and, it now seems, left me with an unarticulated, but significant

emotional bond with this brave new world 9000 miles away.

So when I arrived in Cape Town in March 2003, with my wife of one day, to start our

honeymoon, it felt like the culmination of years of fascination with South Africa. What I didn’t

know then was that this would also be the beginning of a new and more complicated chapter in

my connection with the country. During the trip we visited family friends working as

missionaries in Worcester, a farming town in the Western Cape. They showed us their work:

feeding children at the beginning and end of the day, in order to encourage them to attend

school; helping women to start small businesses, selling crafts. They introduced us to people

living in townships, government flats, and informal settlements. People who, over the coming

years, we would get to know as friends, and whose experiences of poverty would become part

of our own understanding of the world.

For the next three years we visited this work in Worcester, and then moved there to live. Our

jobs, managing a micro-enterprise called People’s Crafts, and leading a youth group, allowed us

to see, at first hand, how people living in some communities faced daily struggles of inadequate

housing; unemployment and exploitative employment; insufficient income with which to buy

food, fuel and clothing; exclusion from education because they couldn’t afford to buy school

uniforms; prohibitively expensive clean water, and recourse to unsafe water sources.

Upon returning to the UK, I became determined to explore why these socio-economic

challenges exist, and to contribute, in some small way, to addressing them. As a lawyer, law was

my natural milieu, and so, finding myself back at my alma mater, I began to research rights and

obligations around access to sufficient water; a study which has eventually become this thesis.

Why share this personal story? Ultimately this thesis is a human story; the story of my enquiry

into the stories of others.3

Explored through the lens of law, and consequently focusing on

structures, institutions and mechanisms at the international and national level, it nevertheless

remains grounded in the realities around people’s access to water, and the practical and

personal consequences of not having enough water. So I endeavour to remember that realising

the goal of access to sufficient water in South Africa is essential for people: For Martinus; for

Cynthia; for Sabelo; for Quinton; for Leonie, and for millions of others.

3

See generally S Pinnegar & J G Daynes ‘Locating Narrative Inquiry Historically: Thematics in the Turn to

Narrative’ in D J Clandinin (ed) Handbook of Narrative Inquiry: Mapping a Methodology (Sage Publications,

2007); K Plummer Telling Sexual Stories (Taylor & Francis, 2004,).

12

1 Introduction

‘There is water within us, let there be water with us. Water never rests. When flowing above, it

causes rain and dew. When flowing below it forms streams and rivers. If a way is made for it, it

flows along that path. And we want to make that path. We want the water of this country to flow

out into a network - reaching every individual - saying: here is this water, for you. Take it;

cherish it as affirming your human dignity; nourish your humanity. With water we will wash

away the past, we will from now on ever be bounded by the blessing of water.

Water has many forms and many voices. Unhonoured, keeping its seasons and rages, its

rhythms and trickles, water is there in the nursery bedroom; water is there in the apricot tree

shading the backyard, water is in the smell of grapes on an autumn plate, water is there in the

small white intimacy of washing underwear. Water - gathered and stored since the beginning of

time in layers of granite and rock, in the embrace of dams, the ribbons of rivers - will one day,

unheralded, modestly, easily, simply flow out to every South African who turns a tap. That is my

dream.’

Antjie Krog4

‘When it rains we collect the water from the roof. It’s better than carrying it from the river [200

metres away]. The rainwater can be rusty from the roof, but we put extra Jik [bleach] in it. So

it’s ok. It doesn’t taste nice when I make tea…

If it hasn’t rained, I get one of the children to go to the river for us. We still have to put Flash in

the water, because the cows shit in it. If not, I get the runs.’

‘Gremmah’ Mbongwa5

The first quotation is from one of South Africa’s most famous poets. Published in the preamble

to the National White Paper on Water Policy, at the beginning of the democratic era, it

declares a new understanding of water; for dignity, for healing, for everyone. For Gremmah

Mbongwa, and many others, this remains a dream.

4

Preamble to the National White Paper on Water Policy, 1997:

<https://www.dwaf.gov.za/Documents/Policies/nwpwp.htm> (Last accessed 27 July 2016). 5

Interview # 1. See appendices.

13

The task of achieving sustainable access to sufficient water for everyone in South Africa is

considerable. Water resource regulation during apartheid formalized and entrenched a

profoundly unequal system, where white South Africans enjoyed an abundance of relatively

cheap water, while water supply for black and non-white South Africans was impeded by poor

infrastructure and lack of essential investment6

. Indeed access to sufficient water became an

avatar of the inequality and illegitimacy at the heart of the apartheid state, and a powerful trope

to focus civil and political protest. The culmination of civil and political efforts to counter the

systemic inequality of water-access can be seen in the articulation of a specific right of access to

water (alongside other essentials) in Section 27 of the 1996 Constitution: ‘Everyone has the

right to have access to sufficient food and water’ 7

However, access to sufficient water is still not a reality for many, and multiple challenges

continue to impede the fulfillment of this most basic human need.

1.1 A right to water – definitions and clarifications

Exploring international, constitutional and community responses to achieving access to

sufficient water for people in South Africa requires research that goes beyond consideration of

a right to water (however that is understood). But inevitably a legal thesis with this focus must

place the right to water in a prominent position. Whether conceived of as an internationally

recognised human right, or as a constitutional right, or as a ‘right-claim’ that transcends the legal

sphere (preferring to emphasise its alleged inherent moral imperative)8

, discourse around access

to water expressed as a right remains a crucial motif throughout the thesis, as it does throughout

the wider literature.

Consequently I am particularly interested in the legal form(s) and content of a right to water,

how such a right has been, and could be interpreted, and how effective it may be in realising the

goal of achieving access to sufficient water for everyone in South Africa. Therefore it comes as

no surprise that rights-based approaches to addressing access to water issues appear within the

research questions posed. But, as explained below, there are a host of dimensions, which

variously complement/co-exist with, contradict, or transcend rights-based approaches to the task

of advancing access to sufficient water. Indeed, alongside discussion of a right to water, there is

a growing discourse around access to water as a ‘development goal’, most famously expressed in

6

P Bond ‘Water rights, commons and advocacy narratives’ (2013) 29 South African Journal of Human Rights 125,

128. 7

Section 27 (1) (b) Constitution of the Republic of South Africa, 1996.

8

M Dembour ‘What are human rights? Four Schools of Thought’ (2010) 32/1 Human Rights Quarterly 1, 2.

14

the Millennium Development Goals9

and Sustainable Development Goals10

. So it is important

at the very beginning to clarify that this thesis is not limited to exploring a right to water. Rather,

in seeking to address the challenge of achieving access to sufficient water, rights-based

approaches are given considerable, but not exclusive attention. Consequently, access to

sufficient water is described as a right and/or a goal, depending on the particular governance

framework under analysis. When neither of these terms directly apply (where measures

towards achieving access to sufficient water are not described in relation to rights, nor are they

employed formally towards realising a specific goal), access to sufficient water is referred to as

an ‘aim’ or an ‘ambition’.

Water and sanitation

Expressed variously through the language of rights and goals, access to water is also often (but

not always) linked to sanitation. For example, the recent United Nations General Assembly

Resolution on the right to water is entitled the ‘human right to water and sanitation’.11

Similarly,

Sustainable Development Goal six aims to ‘ensure the availability and sustainable management

of water and sanitation for all’.12

The World Health Organization defines sanitation as follows:

‘Sanitation generally refers to the provision of facilities and services for the safe disposal of

human urine and faeces […] The word 'sanitation' also refers to the maintenance of hygienic

conditions, through services such as garbage collection and wastewater disposal.’13

This definition illustrates the natural overlap between water and sanitation. General Comment

15 on the Right to Water, from the Committee on Economic, Social and Cultural Rights,

describes the right to water as entitling everyone to ‘sufficient, safe, acceptable, physically

accessible and affordable water for personal and domestic uses’.14

For many people, ‘personal

and domestic uses’ will include sanitation: namely using water to flush or sluice toilets. But

9

Target 7.C available at: <http://www.un.org/millenniumgoals> (Last accessed 27 July 2016). 10

Sustainable Development Goals available at: <https://sustainabledevelopment.un.org/?menu=1300> (Last

accessed 27 July 2016). 11

United Nations General Assembly resolution 64/292 “The human right to water and sanitation”, UN Doc.

A/RES/64/292 (3 August 2010). Hereafter UN GA resolution 64/292. 12

Goal 6: Sustainable Development Goals available at: <https://sustainabledevelopment.un.org/?menu=1300> (Last


World Health Organization, Health Topics: Sanitation <http://www.who.int/topics/sanitation/en/> (Last accessed

27 July 2016). 14

Committee on Economic, Social and Cultural Rights, General Comment No. 15, The Right to Water (Articles

11 and 12 of the International Covenant on Economic, Social and Cultural Rights), U.N. DOC. E/C.12/2002/11,

26 November 2002. Available at <http://www.unhchr.ch/tbs/doc.nsf/0/a5458d1d1bbd713fc1256cc400389e94>

(last accessed 9 July 2015). Hereinafter General Comment 15.

15

while the tasks of improving access to water, and access to sanitation often overlap, the focus of

this thesis is specifically on (access to) water, and not sanitation.

In part, this is in order to delimit the scope of the thesis for the sake of practicality. But it also

acknowledges the growing divergence between access to water and emerging best practice on

sanitation, in areas of relative water scarcity (which includes South Africa). In such areas,

waterless sanitation methods are being pursued, and with some success: reducing the demand

for water, as well as minimizing the potential for boreholes (that provide drinking water) to be

contaminated by sluiced fecal matter.15

Consequently this thesis focuses specifically on water for domestic use, acknowledging the

connection to sanitation where applicable. This follows the approach taken by notable authors

in the field, including Stephen McCaffrey, Inga Winkler and Pierre Theilborger.16

For instance

in relation to the right of access to sufficient water, in the context of South Africa, and regarding

issues raised by the case of Mazibuko17 (where the claimants relied on water-borne sanitation),

some discussion around access to water and a right to water inevitably includes reference to

sanitation.

Also, returning briefly to the definition of the right to water in General Comment 15 (above)

when the word ‘water’ is used throughout the thesis it can be assumed (unless otherwise stated)

that what this refers to is clean water for personal and domestic uses.

Governance

The term ‘governance’ (including ‘water governance’) as used in the thesis, has two distinct

meanings. The first is a broad description of the full range of regulation (relating to water) in a

particular jurisdiction. For instance, Chapter Two: ‘Water governance at the international level’,

refers collectively to the various international human rights and environmental law instruments

relating to water, both binding and non-binding; and to international development goals and

targets relating to water. Similarly water governance in South Africa encompasses the full

national framework for water, including constitutional law, legislation and legislative

instruments, policies and case decisions. The second use of the term governance is as in

15

See for example: A Hendriksen et al ‘Participatory decision making for sanitation improvements in unplanned

urban settlements in East Africa’ (2012) 21/1 Journal of Environment and Development 98-119, 103-4. 16

See S McCaffrey & E Brown et al (eds), Fresh Water and International Economic Law (Oxford University Press

2005); I T Winkler The Human Right to Water: Significance, Legal Status and Implications for Water Allocation

(2014, Hart); P Thielbörger The right (s) to water (European University Institute, 2010). 17 Mazibuko and Others v City of Johannesburg and Others 2010 (3) BCLR 239 (CC). This case is discussed at

length in Chapter Four and throughout the thesis.

16

contrast to government. As such, discussion particularly in Chapters Five and Six around moves

away from government and towards governance, reflect this second meaning: Here government

refers to traditional, hierarchical, state-centric modes of regulation, which are variously

complemented/challenged/marginalised by emerging modes of governance, characterised as

informal, flexible and multi-layered. Use of this government/governance distinction may be in

relation to specific examples. But it also relates to a broader trend, and consequence of

globalisation.18

1.2 Aim and research questions

The title of this thesis is ‘Covenants, Constitution and Commons: International, constitutional,

and community responses to achieve access to sufficient water for everyone’. The thesis focuses

on legal measures to achieve access to sufficient water. Therefore, the following research

question is designed in order to explore the thesis theme:

To what extent can a right to water achieve access to sufficient water in the context of

South Africa?

Five sub-questions aim to guide the research further:

How is the goal of achieving access to sufficient water understood, facilitated, and

implemented at the level of international law19?

How is the right of access to sufficient water understood, facilitated, and implemented

in South African domestic law?

What impact does relevant international law have on South Africa’s regulatory

framework for access to water?

To what extent can the current international and domestic regulatory frameworks

achieve access to sufficient water for everyone in South Africa?

What role can commons/community organisations play in creating effective water

governance20 to help achieve access to water for all?

18

P Jon ‘Introduction: Understanding governance’ in P Jon (ed) Debating Governance: Authority, Steering and

Democracy (OUP, 2000) 2. 19

For the purpose of this question ‘international law’ is understood to encompass not only the authorities as set out

in the Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) 15

UNCIO 355, Arts 38 (1) (a)-(c)), but also the relevant United Nations General Assembly Resolutions, despite not

being binding on Member States, and other ‘soft law’, or non-legally binding instruments including for instance the

1992 Rio Declaration on Environment and Development. See A Boyle ‘Soft law in international law-making’ in M

Evans (ed) International Law (4th

ed, Oxford, 2014) 118, 119-120.

17

1.3 Methodological approach

This research uses a combination of doctrinal, theoretical, and empirical research methods in

order to address the research questions above. Traditional doctrinal methodology is employed

by identifying and analysing the relevant legal instruments, cases and secondary legal material.

This methodological approach is designed primarily to establish ‘what is’, in relation to a

particular area of enquiry.

For this thesis it is necessary to identify and analyse the national and international law relating to

the goal and/or the right of access to sufficient water. Most notably this includes the Universal

Declaration of Human Rights21

, the International Covenant on Economic Social and Cultural

Rights (ICESCR),22

UN General Assembly resolution 64/292 on the right to water and

sanitation,23

the Constitution of the Republic of South Africa, as well as several seminal cases,

domestic promulgating legislation, and secondary legal material including General Comment 15

from the Committee on Economic, Social and Cultural Rights (CESCR) of the United Nations

Economic and Social Council (ECOSOC)24

. Alone, such a doctrinal approach lends itself to a

positivist understanding of law, summarised by Bentham’s Command Theory of law25

. Here,

law is no more and no less than the rules that have been commanded by a sovereign, supported

by a sanction for failing to comply26

(or translated to the level of international law; ‘no more or

less than the rules that states have agreed to’27

).

In order to develop this thesis towards a more critical and contextualised position, it is

necessary to reconceptualise law as a ‘dynamic set of processes’ rather than ‘primarily as a body

20

Here the term ‘governance’ is deliberately used in contrast to the traditional, hierarchical notion of regulation

referred to in the previous two sub-questions. Instead, governance, which emphasises flexible, informal and multi-

level regulation, is proffered as potentially a more appropriate regulatory strategy, more complementary to

commons thinking. See variously R Bellamy & A Palumbo (eds) From government to governance (Ashgate, 2010),

P Jon ‘Introduction: Understanding governance’ in P Jon (ed) Debating Governance: Authority, Steering and

Democracy (OUP, 2000). These definitions and themes are considered further in chapter five. 21

Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III), 3 U.N. GAOR

(Resolutions, part 1) at 71, U.N. Doc. A/810 (1948). Hereafter UDHR. 22

International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec 1966, 993 U.N.T.S. 3

(entered into force 3 Jan. 1976), G.A. Res. 2200 (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316

(1966). Hereafter ICESCR. 23


A/RES/64/292 (3 August 2010): ‘recognizes the right to safe and clean drinking water and sanitation as a human

right that is essential for the full enjoyment of life and all human rights’ (paragraph 1). 24

General Comment 15. 25

H McCoubray & N White Jurisprudence (3rd

ed, Blackstone Press, 1999) 13. 26

Ibid. 27

RW Tucker ‘Hans Kelsen Principles of International Law’ (1966) 438-39 in SR Ratner & AM Slaughter

‘Appraising the Methods of International Law: A Prospectus for Readers’ (1999) 93 American Journal of

International Law 291, 293.

18

of rules’28

: A move which replaces the ontological question ‘what is the law?’ with the more

purposive question ‘what is the law for?’29

Such a development has been pursued in a number

of ways. First, relevant literature is critically discussed in order to develop a ‘qualitative’

approach to this research30

; identifying the focus of the enquiry (access to sufficient water) as a

legal issue with socio-economic and ecological consequences, and developing arguments aimed

at influencing law and policy accordingly. Second, further qualitative research in the form of

semi-structured interviews were undertaken (the purpose of these interviews and the

methodology and method employed, are discussed below).

Because this thesis has been designed to evaluate the extent to which conferral of a right to

water can achieve access to sufficient water, this necessarily involves consideration of how the

right to water (and indeed other approaches to water governance) is interpreted, applied and

experienced by people ‘on the ground’, particularly those whose access to sufficient water is

problematic. Such qualitative research like interviewing has been described as ‘a situated

activity that locates the observer in the world’31

. This allows the researcher to ‘study things in

their natural settings, attempting to make sense of, or interpret, phenomena in terms of the

meanings people bring to them’32

. Therefore in the context of this research, interviews are a

crucial way to discover the ‘gap’ between the law and the reality for many.

Third, theoretical insights, both from legal scholarship and beyond, are employed in order to

better challenge assumptions, and to clarify the purpose, structure and methods of this

research. Of particular note are those insights drawn from narrative inquiry, which assisted in

the design and use of interview data, but also offer an important justification for the connection

(made explicitly in Chapter Five) between narrative approaches33

to this type of research, and

commons approaches to effective water allocation. Similarly ‘constitutionalism’ and

‘governance’ are influential to the argument and discussion in various places.

28

AM Slaughter & SR Ratner ‘The Method is the Message’ (1999) 93/2 American Journal of International Law

410, 410. 29

Ibid. 30

I Dobinson & F Johns ‘Qualitative legal research’ in M McConville & W Chui, Research Methods for Law

(Edinburgh University Press, 2007) 40. 31

NK Denzin & YS Lincoln Handbook of Qualitative Research (Thousand Oaks, California, 2005) 1-32 in S

Sarantakos Social Research (Palgrave MacMillan, 2013) 37. 32

Ibid. 33

The narrative approach referred to here is ‘narrative analysis’, defined by Bryman as ‘an approach to the

elicitation and analysis of data that is sensitive to the sense of temporal sequence that people, as providers of

accounts (often in the form of stories) about themselves or events by which they are affected, detect in their lives

and surrounding episodes and inject into their accounts’: A Bryman Social Research Methods (4th

ed, Oxford

University Press, 2012) 582. This method is also referred to variously as ‘narrative inquiry’ and ‘narrativity’. The

importance of this analysis is explained in Chapter Five.

19

Together the doctrinal, qualitative/empirical and theoretical research methods combine to form

what may be best described as a socio-legal research methodology, which Abrams characterises

as ‘forcing us to think concretely but to remember socially’.34

Legal research does pertain to the

study of tangible laws and legal materials. But such study always, necessarily happens within a

social context. This allows the law to be understood from a constructivist perspective; as being

part of the wider social, economic and political structures in which it operates.35

1.3.1 Interviews: Purpose, methodology and method

During research for this thesis I have conducted interviews with people in marginalised

communities in South Africa and Malawi, as well as with academics, legal practitioners, and

NGO workers. The interviews were conducted during various research trips between 2010 and

2015. This relatively long time span has allowed interview data to be collected both from a

variety of people and areas, but also at different points in time, which has given some insights

around the pace of change regarding access to sufficient water, as well as people’s experience of

access to water at any one instant. The purpose of these interviews was mainly to hear first-hand

accounts of people’s experience of access to water, including the implications for them of living

with insufficient water. Therefore when interviewing community members I was particularly

interested in locating communities where people’s access to sufficient water was likely to be

problematic.

The interviews are used to complement and humanise the evidence put forward that many

people in South Africa currently suffer from access to insufficient water. They also supplement

the arguments made regarding the efficacy and limitations of rights-based approaches to water,

as well as anchoring discussion of community/commons approaches to water allocation within

the realities of people’s experiences. The interviews therefore primarily capture the ‘voices’ and

the ‘stories’ of water-poor people living in South Africa at various points in time and space. By

including these voices and stories, the intention is not to claim to provide data that can be

generalised and extrapolated to map nation-wide trends. Rather, the interviews are used to

animate the legal and theoretical analysis in the thesis, adding perspectives from those who

would normally be considered as other36 in a developing economy - the urban and rural poor.

34

K Abrams ‘Hearing the Call of Stories’ California Law Review (1991) 1052. 35

R Banakar & M Travers (eds) Theory and Method in Socio-Legal Research (Hart Publishing, 2005) xi. 36

GWF Hegel Phenomenology of Spirit (Clarendon Press, 1977) at 111.

Although the concept of the Other is applied in many ways, it is used here in its simple Hegelian definition, to

distinguish the same from the other. As such the Other is imperative for national identities (those in and those out)

as well as any institution or identity espousing absolute values. Hegel’s Master-Slave dialectic illustrates the

phenomenon of the Other in action. It also shows the association of imbalanced power relations implicit in the

20

This approach is methodologically important as it seeks to incarnate the value of engaging

multiple and multifarious voices within the discourse, in order to legitimise and humanise the

research. It also aims to forge a strong link between this empirical work and a theoretical

understanding of how the ambition of access to sufficient water might be made manifest. Such a

combination of a unique mixture of voices with legal and theoretical analysis is intended to

produce research, which makes an original and meaningful contribution to the state of the art.

Having previously worked in South Africa for an NGO called Youth With A Mission –

YWAM37

(originally a Christian missionary organisation, but more recently also involved in

community development, poverty reduction projects and health and social education

campaigns) my point of departure for finding interviewees was to contact this NGO, which has

bases throughout Africa. I chose not to interview in the communities where I had previously

worked, in order to avoid interviewing people whom I knew personally, or at least people who

recognised me in my previous employment. While interviewing acquaintances may have been

the easier option, the personal nature of my enquiry, coupled with our familiarity, had the

potential to create embarrassment for both parties and discomfort for the interviewees.

Therefore I chose to exclude these people from my sampling frame. However, any resulting

sampling bias was offset by the fact that my sample was extremely small, compared to the

population of the communities, and by the fact that those interviews that were conducted

included people in very similar material conditions, and from similar socio-economic

backgrounds as those in the communities I excluded.38

I arranged to visit two bases, one in

Winterton, in rural Kwa-Zulu Natal, the other in the city of Durban. At each base a member of

staff kindly acted as a guide (and where necessary a translator) and we travelled together to the

various communities where the NGO worked. Once in each community, I was introduced to

local people, given the opportunity to explain the purpose of my research and of my visit, and

to ask for volunteers to be interviewed. Prospective interviewees were given an information

sheet (which was also explained by my guide, because a sufficient level of literacy among

prospective participants could not be assumed), and it was clearly stated first that there was no

remuneration for taking part in interviews, and second, that there was no likelihood of

immediate improvement in people’s access to water as a result of my research (in particular

phenomenon. In Hegel’s illustration neither man is satisfied to acknowledge the existence of the other without

challenging the other for dominance. The Master-Slave relationship is the culmination of this challenge.

Consequently, the Other signifies not simply another besides oneself, but someone/thing different, dichotomised,

or rejected. In the context of this thesis, where socio-economic power is a particular focus, the other signifies those

who do not benefit (and indeed who suffer) from the dominant capitalist system of wealth creation: The poor. 37

<http://www.ywam.org> (Last accessed 27 July 2016).

38

A Bryman Social Research Methods (4th

ed, Oxford University Press, 2012) 187-188.

21

here it was made clear that I was not working for national or provincial government).

Volunteers were asked to give informed consent to interviews being recorded, were offered the

option of giving their names or of remaining anonymous (most people gave their names,

although some gave first names, or nicknames only), and were informed that they could stop

the interview at any time.

Each interview was semi-structured, using an interview schedule,39

with questions being asked in

the most appropriate order given in relation to each conversation. Particular attention was given

to allowing interviewees to speak at some length about their experiences around access to water,

without unnecessary interruption, in order to best capture each person’s story. This

combination of having a set of guiding questions, while also encouraging open conversation

allowed me to ask broadly similar questions to each participant, while not stifling each person’s

responses. The information sheet and interview guide are included in the Appendix to this

thesis.

During interviews it was important to remember that my position as a stranger, a foreigner, and

a perceived ‘expert’ would affect the power dynamics present in any interview. These factors

were mitigated against as far as possible by deliberately selecting an informal and semi-

structured interview style, and by interviewing two or three community members together at

one time (allowing the interviewees to ‘outnumber’ the interviewer).

After each set of interviews the recorded audio files were downloaded, saved on to a secure

computer (initially a laptop which was locked in a safe during this fieldwork, when not in use;

then a desktop personal computer at the University of Sheffield Law School postgraduate

facility). Files were organised using the interviewee’s name, location and date of interview, and

password protected. Copies of annotated interview schedules, as well as hand-written notes in a

notebook were also kept securely and seen only by me. Preparation for the interviews, their

execution, and subsequent use of the data collected have all met the University of Sheffield,

School of Law ethics committee requirements as stated when ethics approval was given for this

work.

In addition to the interviews conducted with community members, I also interviewed the base

leader at YWAM Winterton, as well as several academics working in fields related to this

research, at North West University (NWU), Potchefstroom, and the University of Kwa-Zulu

Natal (UKZN), Durban. Finding interviewees in these institutions followed a ‘snowball

39

MW Bauer & G Gaskell (eds) Qualitative Researching with Text, Image and Sound: A Practical Handbook

(Sage Publications, 2000) 40.

22

sampling’ method.40

An initial contact was made with a Professor of Environmental Law at

NWU, who kindly recommended colleagues in his institution and at UKZN. These contacts

were then pursued, and in some instances, resulted in subsequent recommendations also.

Interviews with these participants constituted what Gillham describes as ‘elite interviewing’41

:

Interviewing experts or other authoritative people in your field of research42

. Consequently, the

structure of these interviews was different to those conducted through YWAM, as Dexter

explains:

‘In standardized interviewing… the investigator defines the questions and the problem; he is

only looking for answers within the bounds set by his presuppositions. In elite interviewing… the

investigator is willing, and often eager to let the interviewee teach him what the problem, the

question, the situation is.’43

Yet despite these legitimate differences, there remained a continuity of emphasis on hearing

people’s voices and stories. Because of this I was willing and eager to be taught more about the

problem(s) faced, as well as about what questions to ask, when interviewing both community

members and conducting ‘elite’ interviews. The interviews with academics are not explicitly

quoted from in this thesis. Rather, they have contributed to my understanding of the legal,

social and cultural context within which the right to water, and water governance operates in

South Africa.

A subsequent research trip to communities partnering with the NGO Water for People, in

Malawi in 2014, and a return visit to communities working with YWAM in Durban in 2015

utilized the same interviewing methods as already explained, and followed the same ethics

requirements.

Together this empirical work includes 12 interviews with ‘water-poor’44

community members in

South Africa, three in Malawi, one interview with a retired Constitutional Court Judge, and

three with NGO workers. This constitutes a considerable number of hours of interview footage,

which, as already stated, is not intended to underpin generalised claims. Instead, interviews

were transcribed and analysed in order to identify themes. Quotations were then used which

best encapsulated these themes in order to help meet the challenges already identified of

40

See MR Gabor ‘Types of Non-Probability Sampling used in Marketing Research: Snowball Sampling’ (2007) 2/1

Managing and Marketing; R Maisel & CH Persell How Sampling Works (Sage, 1996). 41

B Gillham Case Study Research Methods (Continuum, 2000) 63-64. 42

Ibid. 43

LA Dexter Elite and Specialized Interviewing (ECPR Press Classics, 2006) 19. 44

This phrase refers to the state of water poverty, described as ‘the condition of not having access to sufficient

water, or water of an adequate quality to meet one’s basic needs’.

23

bridging the gap between the law and reality. Despite best efforts it is important to acknowledge

that this part of the empirical research conducted is the most vulnerable to unconscious bias on

my part; selecting quotes that reinforce my argument or preconceptions. In order to address

this, where possible, assertions of fact were ‘triangulated’45

with information provided by other

interviewees, or checked with other sources.

Quotations from interviews appear in several chapters, are indented, and referenced with a

footnote. In Chapter Five the interviews are incorporated and analysed in more detail. A full list

of interviewees, along with their locations and/or organisations is given in the appendix.

1.4 Contribution to relevant academic debates

This thesis is located within the discipline of law. Consequently areas of legal enquiry relevant

to the research questions posed necessarily include human rights law (in particular social and

economic rights) law and development; sustainable development; and wider concerns of

environmental law (each at the national/domestic and international level), as well as

constitutional (public and administrative) law and legal theory, and water regulation within the

specific context of South Africa. But identifying the thesis as socio-legal research requires that

themes including poverty; gender; power relations; social impacts of new water technology; and

water governance more generally feature to greater or lesser degrees.

This thesis makes an original contribution to the existing knowledge on how best to pursue

access to sufficient water for people in South Africa by equitable, sustainable and efficient

legal/regulatory/governance means. More specifically the thesis contributes to three key

academic debates: the appropriate developmental role of the South African Constitution, and

Constitutional Court; the role of rights in achieving eco-socio-sustainable access to water; and

the potential of ‘commons thinking’ for water governance, and the extent to which such

thinking could contribute to more sustainable, equitable access to water for everyone.

In so doing, the thesis builds on wider debates around judicial restraint and judicial activism,

applying them here to South Africa’s unique socio-legal context; including its expansive and

decidedly transformative Bill of Rights, its on-going battle with significant impoverishment (in

the aftermath of centuries of systemic discrimination), and its evolution towards liberal

45

The process of triangulation in social science research involves using more than one method of gathering data, or

more than one source of data in the study of a social phenomenon. This is considered an advantage, as it allows

for confirmation, and consequently for increased confidence in the reliability of the data: A Bryman Social

Research Methods (4th

ed, Oxford University Press, 2012) 717.

24

democracy. Similarly, the reappraisal of the role of socio-economic rights takes places primarily

in the context of the South African Constitution (which, regarding the right to water in

particular, has been so heavily influenced by the international human right to water). Also, the

recent resurgence of interest in the commons, as well as in local and ‘glocal’ dimensions to

debates on (climate) justice are focused upon the South African context, and upon commons

struggles in the country. Most importantly, ideas around water rights and commons thinking are

considered in relation to the ‘on the ground’ experiences and actions of people in communities

where access to water is problematic.

1.5 Understanding water paradigms

Water, and access to water can be understood in different ways, and through different

paradigms. A paradigm can be defined as ‘the basic belief system or worldview that guides the

investigator… in ontologically and epistemologically fundamental ways”. 46

These paradigms may

be socially constructed, and may have direct or indirect legal implications. Some may only be

unconsciously experienced; assumed without being thought. For many of us, especially those of

us living in ‘developed countries’ the ubiquity of safe, clean water is an ordinary part of daily

life. If familiarity really does breed contempt, then it is likely we do not give water the respect it

deserves. Clean water, in abundance, available directly and cheaply, is considered an

entitlement. Consequently it is difficult to reconceive of water as a precious, finite, nay scarce

resource, a gift, a relief, and not as a foregone conclusion. Such associations with water are

largely alien to my experience. But it is important at the beginning of this research to consider

the most prevalent paradigms that frame people’s thinking about water and access to water, and

consequently which help shape different approaches to water governance; no matter how

interconnected or (un)conscious or (in)formal these paradigms may be.

1.5.1 Water as life

Water is a necessary constituent of every cell of every plant and animal on Earth.47

Present on

the planet long before the evolution of life, water is a prerequisite for all living organisms.48

Water also forms a significant proportion of the mass of many organisms, including around

70% of adult humans. Most of this water acts to distribute nutrients throughout the body, and to

46

EG Guba & YS Lincoln ‘Competing paradigms in qualitative research’ in Handbook of Qualitative Research 2.

105, 105. 47

F Franks (ed) Water, A Comprehensive Treatise: Volume 1: The Physics and Physical Chemistry of Water

(Plenum Press, 1983) 4 48

Ibid 5.

25

remove waste products. Additionally the water content of all biological fluids, including saliva,

gastric juices and plasma, is between 90 and 99%.49

Consequently, not only is water essential for the beginning of life, but also for its continued

survival. Adult humans take in around 2.5 litres of water per day, in the form of liquid water,

and from solid food. Much less than this volume results in dehydration, which impedes

physical and mental functions. Severe dehydration leads to morbidity and ultimately death.50

While clean water is essential for life, water contaminated with diseases is a leading cause of

death in the developing world, especially among children.51

Cholera, typhoid, and diarrhoea are

all caused by drinking ‘dirty’ water, which leads to the death of nearly 4000 children every day.52

In short, life and clean water are inseparable. It is not surprising then that across cultures,

philosophies and religions, as well as in science, life and water are inextricably linked.

1.5.2 Water as element(al)

‘Water is H2O, hydrogen two parts, oxygen one, but there is also a third thing that makes it

water and nobody knows what it is.’

DH Lawrence – Pansies53

Water appears to play a profoundly significant role both in biological life, and in creating

spiritual/existential understandings of life. Such an ‘elemental’ dimension to water has been

reflected in literature and philosophy since antiquity. Ovid’s Metamorphoses uses water to

symbolize fundamental truth as constantly moving, and changing.54

Thales – widely regarded as

the first Greek philosopher – declared water as the source of all things.55

Mazisi Kunene relates

the Zulu belief that ‘from water is born all peoples of the earth.’56

49

Ibid 6-7. 50

D Andrews et al ‘Dehydration: Evaluation and Management in Older Adults’ (1995) 274/19 The Journal of the

American Medical Association 1552-1556. 51

World Water Assessment Programme United Nations World Water Development Report 2: Water, a Shared

Responsibility (Paris, 2006) 204. 52

Ibid. 53

DH Lawrence Pansies: Poems by DH Lawrence (Fedonia Books, 2002) 54

R J Tarrant (ed) Ovid Metamorphoses: Oxford Classical Texts (Oxford University Press, 2004). 55

D Macauley Elemental Philosophy: Earth, Air, Fire and Water as Environmental Ideas (State University New

York, 2010) 43. 56

M Kunene The Ancestors & the Sacred Mountain (Heinemann Educational, 1982).

26

The biblical creation poem in Genesis describes how water was present before life was made:

‘And the earth was without form and void, and darkness was upon the face of the deep. And the

Spirit of God moved upon the face of the waters.’57

The Qur’an, how life came from water:

‘And God hath created every animal of water: of them there are some that creep on their

bellies; some that walk on two legs; and some that walk on four.’58

The elusive third element in DH Lawrence’s poem is perhaps that which the traditions above

intuitively experience and seek to articulate. But what is important to an understanding of water

paradigms is to acknowledge that the necessity of water for life as a scientific fact is echoed

across philosophical and religious traditions. Together these lead to a paradigmatic

understanding of water as a necessity in the fullest sense.

1.5.3 Water as necessity

Water (or more accurately, access to clean water) is necessary for existence. Therefore it must

be understood as a necessity if existence is to continue. But a paradigm of ‘water as necessity’

goes further than existence, affirming that water is necessary for dignified life. Regarding

humanity’s need for water, General Comment 15 describes access to water as ‘indispensable for

leading a life in human dignity’.59

This paradigm has been, and continues to be, hugely

influential in shaping attitudes towards water access, and water governance that effectively meets

this necessity.60

The preamble to the Universal Declaration of Human Rights makes clear the

link between human dignity and human rights.61

Human rights flow from the ‘inherent dignity’

of the ‘human family’.62

Therefore the concept of a human right to water (as to anything else)

rests on an acknowledgment of human dignity, and aims to affirm and to protect people’s

dignified existence, not simply their existence. Consequently the ensuing discussion on the

human right to water in this thesis, and the implications of such a right for water governance,

may be understood as predicated upon a paradigm of water-as-necessity. Similarly, the explicit

connection between human dignity and the Millennium Development Goals, articulated in the

57

The Holy Bible containing the Old and New Testaments [Authorised King James Version]. (Collins Bible) Book

of Genesis 1, verse 2. 58

The Qur'an Translated by Tarif Khalidi. (Viking, 2008) Sura 24, 44. 59

CSECR, General Comment No 15. 60

One such example of this paradigm’s influence on attitudes to water access is the 2014 European Citizens’

Initiative (ECI) on the right to water. This gained 1.68 million signatures across the European Union. In response

to this the European Commission committed, amongst other things, to ‘advocate universal access to safe drinking

water and sanitation as a priority area for post-2015 Sustainable Development Goals’.

<http://europa.eu/rapid/press-release_IP-14-277_en.htm> (Last accessed 27 July 2016). 61

UDHR at preamble. 62

Ibid.

27

United Nations Millennium Declaration,63

suggests that the goal of halving the number of

people without sustainable access to water64

may also be understood as flowing from a water-as-

necessity paradigm.

Water is also a necessity for all non-human animals, and for all ecosystems. Recent work on

planetary boundary theory, pioneered at the Stockholm Resilience Centre at Stockholm

University, proposes a framework for human interaction with the Earth’s systems, in order to

define a safe operating space for humanity.65

Nine planetary boundaries are identified, including

ocean acidification, climate change, biochemical flows, and freshwater use. The theory states

that crossing any of the nine boundaries may lead to ‘irreversible and abrupt environmental

change’,66

which will be compounded by multiple breaches. It is estimated that three boundaries

have already been breached (biodiversity loss, climate change, and the atmospheric nitrogen

cycle), and that the remaining boundaries may also be crossed by 2050.67

Overexploitation of

freshwater sources (including lakes and aquifers) is increasing (whereby water is extracted at a

rate that exceeds the recharge rate of the source), leading some hydrologists to call for ‘a global

limit on water consumption’.68

More positively though, there is huge potential to improve the

efficiency of human’s water-use, thereby reducing the risk of crossing the freshwater boundary.69

What is certain though, is that water is a necessity for everyone and everything that shares this

planet.

1.5.4 Global water

Echoing the call for a global limit on water consumption, approaches that conceptualise water

(and water governance) from global perspectives, are rising in prominence. Earth Systems

Governance (ESG) is one such perspective, defined as:

‘the interrelated and increasingly integrated system of formal and informal rules, rule-making

systems, and actor-networks at all levels of human society (from local to global) that are set up to

steer societies towards preventing, mitigating, and adapting to global and local environmental

63

General Assembly United Nations Millennium Declaration (18 September 2000) A/Res55/2 para 2. 64

Millennium Development Goals, goal 7, target 10. Available at

<http://www.unmillenniumproject.org/goals/gti.htm#goal7> (Last accessed 27 July 2016). 65

The Nine Planetary Boundaries – Stockholm Resilience Centre:

<http://www.stockholmresilience.org/research/planetary-boundaries/planetary-boundaries/about-the-research/the-

nine-planetary-boundaries.html> (Last accessed 27 July 2016). 66

J M Anderies et al ‘The Topology of Non-linear Global Carbon Dynamics: From Tipping Points to Planetary

Boundaries’ (2012) Center for the Study of Institutional Diversity Working Paper Series #CSID-2012-009. 67

Ibid. 68

D Molden ‘Planetary Boundaries: The Devil is in the Detail’ (2009) Nature Reports Climate Change 119. 69

Ibid.

28

change and, in particular, earth system transformation, within the normative context of

sustainable development.’70

In the specific context of water governance, ESG seeks to acknowledge all actors involved in the

regulation of societal activities and behaviours with regards to earth system dynamics, and to

analyse the myriad layers and interconnections between public and private actors and actor

networks at all levels of policy and decision-making. To this end, such a conceptual approach

complements the international, national and local/community layers of water governance

considered in this thesis. Contemporary ESG research also links to ideas of the anthropocene,

and of socio-ecological security, which are examined below.

Integrated Water Resources Management IWRM is a more formally constructed approach to

water governance than ESG. Longer established, and more technically focused, it should be

considered less as a water paradigm, and more as a tool with which to pursue a global

(international, interconnected, and integrated) paradigm of water governance. The central

conceptual theme of IWRM is that water resources are finite and interdependent.71

The Dublin

Statement on Water and Sustainable Development (known as the Dublin Principles) was

agreed at the International Conference on Water and the Environment in Dublin in 1992. It

contains four guiding principles, which summarise and promote IWRM as a holistic approach

to hydrological management, emphasising its ecological, economic and social implications.

IWRM also recognises the right of all people to clean water and sanitation at an affordable

price (Principle No. 4). It has been criticised for lacking specific objectives, and the question

has been asked whether its emphasis on all relevant factors should remain procedural, or

extend towards a more substantive agenda.72

Nevertheless IWRM as a water paradigm has

provided a common basis for water sector reform across the world, including shaping legislation

in South Africa.73

It is considered in greater detail in Chapter Three. But it is the first statement

70

Earth Systems Governance: Conceptual Framework: <http://www.earthsystemgovernance.org/about/concept>

(Last accessed 27 July 2016). 71

International Conference on Water and the Environment: Development Issues for the 21st

Century, 26-31

January 1992 Dublin, Ireland, The Dublin Statement on Water and Sustainable Development: Principle No. 1 –

‘Fresh water is a finite and vulnerable resource, essential to sustain life, development and the environment.’

Principle No. 2 – ‘Water development and management should be based on a participatory approach, involving

users, planners and policy-makers at all levels.’ Principle No. 3 – ‘Women play a central part in the provision,

management and safeguarding of water’. Principle No. 4 – ‘Water has an economic value in all its competing uses

and should be recognised as an economic good. Within this principle it is vital to recognise first the basic right of

all human beings to have access to clean water and sanitation at an affordable price…’ Hereinafter: The Dublin

Statement on Water and Sustainable Development. 72

B Mitchell ‘Integrated water resources management, institutional arrangements, and land use planning’ (2005) 37

Environment and Planning 1335-1352. 73

B van Koppen & B Shreiner ‘Moving beyond integrated water resource management: developmental water

management in South Africa’ (2014) International Journal of Water Resources Development 1-16, 1-2.

29

of Principle No. 4 - ‘Water has an economic value in all its competing uses and should be

recognised as an economic good’ - that connects to the next water paradigm to be introduced.

1.5.5 Water as commodity

A commodity is a marketable item produced to satisfy wants or needs.74

In light of the fact that

sufficient clean water is imperative to sustaining dignified existence, it is easy to understand why

water may be considered Earth’s most precious commodity.75

Basic market economy principles

of supply and demand, applied to water, provide further impetus towards a paradigm where

water is treated as a commodity. On the supply side the inconvenient reality is that the volume

of water on this planet remains fixed.76

Of this volume, less than three per cent is fresh water.77

Meanwhile, demand, particularly since the 1990s has been growing, led in large part by a

significant and sustained increase in the global population: In 1987 the world’s total population

was five billion. By 1999 this had reached six billion. In 2011 it reached seven billion, and is

estimated to reach eight billion by 2024.78

Indeed, rising human demand for water significantly

outweighs the predicted effects of greenhouse gas global warming in terms of the consequences

for global water systems in the near future.79

Such a combination of static supply and growing

demand for a commodity inevitably leads to an increase in unit price (or market value).80

The need to meet increasing demand for this necessity called water, coupled with the promise

of increased returns, has opened up huge economic opportunities for investment in water and

sanitation services for myriad international financial institutions and multinational

corporations.81

Also, during the late 1980s and throughout the 1990s economic orthodoxy

coalesced around the so-called Washington Consensus, which Stiglitz defines as:

74

“An article of commerce; something of use, advantage or profit” Collins Dictionary definition: < http://www.collinsdictionary.com/dictionary/english/commodity> (Last accessed 27 July 2016). 75

J Chaisse & M Polo ‘Globalization of Water Privatization: Ramifications of Investor-State Disputes in the ‘Blue

Gold’ Economy’ (2015) 38/1 Boston College International & Comparative Law Review 1-63, 2. 76

F Franks (ed) Water, A Comprehensive Treatise: Volume 1: The Physics and Physical Chemistry of Water

(Plenum Press, 1983) 2-3. 77

Ibid 3. 78

<http://www.worldometers.info/world-population/> (Last accessed 27 July 2016). 79

CJ Vorosmarty et al ‘Global Water Resources: Vulnerability from Climate Change and Population Growth’

(2000) 289 Science 284-288, 284. 80

M Blaug Economic Theory in Retrospect (2nd

ed, Heinemann Educational Books Ltd, 1968) 42-46. 81

See generally Water Projects & Programs, World Bank: <http://www.worldbank.org/en/topic/water/projects>

(Last accessed 27 July 2015).

30

‘development strategies focusing on privatization, liberalization and macro-stability (meaning mostly price

stability); a set of policies predicated upon a strong faith – stronger than warranted – in unfettered markets

and aimed at reducing, or even minimizing, the role of government’.82

Applied to water services, many such policies prioritised using privatisation contracts to

facilitate and achieve much-needed investment in water and sanitation infrastructure and

facilities. Consequently by 2013 ten per cent of the global population received their water from

private companies.83

This has led to the emergence of a closer association between providing

access to water and operating such provision on the basis of generating profit. Indeed this is not

limited to those areas of water services provided by private companies. The commercial, or

private-sector mind-set that water services can, and should be profitable is also now a common

feature across State-owned and provincial water providers.84

Such a ‘privatesque’ approach to water provision is sufficiently prevalent and imbedded to

warrant the identification of a water-as-commodity paradigm here. Indeed, it is asserted here

that this is the dominant paradigm within which assumptions are made around water

governance.85

The implications of operating water services according to this paradigm are not

easy to determine, and it is important to state that such a paradigm is not automatically

antithetical to other paradigms discussed. Nor is it necessarily in conflict with the concept of a

(human) right to water. But, as will be explored later in this thesis, such a paradigmatic

approach to water has raised tensions with an understanding of water as necessity; tensions first

felt in some of South America’s water privatization experiments. These experiments have had

global ramifications for water governance, and have helped to clarify and restate the last

important water paradigm to be introduced.

1.5.6 Water as commons

In December 1999 in the Bolivian city of Cochabamba, the previously State-owned water

supply company Semapa was privatized. The privatization contract went to Aguas del Tunari, a

joint venture with the US multinational construction company Bechtel. Immediately water rates

were raised by 35%. Consequently many residents could not afford to pay for their water,

becoming disenfranchised from what they considered their right (affordable access to sufficient

82

JE Stiglitz ‘The Post Washington Consensus Consensus’ (The Initiative for Policy Dialogue Working Paper,

2004) 1. 83

SL Murthy ‘The Human Right(s) to Water and Sanitation: History, Meaning, and the Controversy over

Privatization’ (2013) 31 Berkeley Journal of International Law 89, 109. 84

J Dugard ‘Can Human Rights Transcend the Commercialization of Water in South Africa? Soweto’s Legal Fight

for an Equitable Water Policy’ (2010) Review of Radical Political Economics 1-20, 8. 85

See for example The Dublin Statement on Water and Sustainable Development.

31

water). 86

This led to large scale, sustained public protest, between January and April 2000,

organised mainly by the community coalition Coordinadora in Defense of Water and Life. On

the 10th

April 2000, less than five months after the privatization contract had been signed, the

Bolivian government reversed the privatization and returned Cochabamba water to State

ownership.87

The legacy of the so-called ‘Cochabamba water war’, along with similar events in Argentina, is

considered in more detail in Chapter Two, particularly in relation to their influence on the

2010 General Assembly resolution on the right to water and sanitation. But it is introduced

here because, with the benefit of hindsight, it was these events in Cochabamba that first located

issues of water rights (articulated since Cochabamba as ‘water justice’), and community-based

resistance to the commodification and privatization of water, within broader struggles for global

justice, including global environmental justice.88

It is also important to note that the

Cochabamba water war was influenced by non-Western, indigenous worldviews and communal

ways of life that emphasised the importance of keeping access to water available for all, through

an understanding of water as part of the ‘commons’. The concept of commons (discussed at

length in Chapter Five, and elsewhere) encompasses notions of communality, manifested

through structures of community deliberation and decision-making regarding resources

conceived of as collective, corporately held, or common; including water.89

Together, resistance

to an approach to water commodification that results in disenfranchisement, coupled with a

restatement of water as part of the (global) commons, is introduced here as a paradigm of ‘water

as commons’.

1.6 Outline of thesis

The thesis follows a three level approach, moving from consideration of the research question

(and relevant sub-questions) at the international level (the level of the Covenants), then to the

national, domestic jurisdiction of South Africa (the level of the Constitution), before moving to

consider the actual and potential role that commons and community-focused governance can

play in achieving access to sufficient water for everyone (the level of the Commons).

86

W Assies ‘David versus Goliath in Cochabamba: water rights, neoliberalism, and the revival of social protest in

Bolivia’ (2003) Latin American Perspectives 14-36, 15

87

Ibid 21. 88

L Mehta et al ‘Global environmental justice and the right to water: the case of peri-urban Cochabamba and

Delhi’ (2014) 54 Geoforum 158-166, 161.

89


Bolivia’ (2003) Latin American Perspectives 14-36, 16-17.

32

Chapter two: ‘Water governance at the international level’, outlines the (hard and soft) law and

legal instruments relevant to identifying the nature and scope of an internationally

acknowledged human right to water. The history around acceptance of the right is considered,

including the important interpretative role played by the Committee on Economic, Social and

Cultural Rights, as well as the effects that water reform in South America had in driving

acknowledgment of the right to water at the international level. The chapter also critiques the

structural and practical limitations of an international human right to water, and to a rights-

based approach to water governance, before comparing the

alternative/complementary/competing concept of water as a development goal. The

interconnections between social, economic and cultural rights, civil and political rights, and

environmental exigencies are considered. In particular, the question of sustainable access to

sufficient water is framed within the challenges and limitations not just of economic resources,

but also of emerging ecological capacities. Such a consideration of water in relation to social-

ecological security (drawing particularly on the work of Crutzen & Stoermer,90

Ebbesson,91

Grear92

and Kotze93

) emphasises not only the existence of, and implications for an international

human right to water, but also the present and future global context for any meaningful claim to

such a human right.

Chapter Three: ‘Water in South Africa’, moves the thesis from the international level, to a

single national context in order to explore both the connection between the international and

national levels regarding water governance, and to chart the current shape of water access and

water governance in South Africa. This begins by exploring the unique legal/historical/political

factors surrounding South Africa’s current water topography, as well identifying more general

regional and paradigmatic changes, which together have influenced the country’s current water

settlement. Emerging from a historically informed study of the legal/regulatory regime for water,

is a focus on the centrality of the 1996 Constitution. This central role is considered from both a

90

P Crutzen & E Stoermer ‘The “Anthropocene”’ (2000) 41IGBP Global Change Newsletter 17-18. 91

J Ebbesson ‘Social-Ecological Security and International Law in the Anthropocene’ in J Ebbesson et al (eds)

International Law and Changing Perceptions of Security – Liber Amicorum Said Mahmoudi (Brill, 2014) 71. 92

A Grear ‘Human rights, property and the search for ‘worlds other’’(2012) 3/2 Journal of Human Rights and the

Environment 173-195; A Grear ‘Human Bodies in Material Space: Lived Realities, Eco-crisis and the Search for

Transformation’ (2013) 4/2 Journal of Human Rights and the Environment 111-115. 93

L J Kotze Global Environmental Governance: Law and Regulation for the 21st

Century (Edward Elgar, 2012); L J

Kotze ‘Arguing Global Environmental Constitutionalism’ (2012) 1/1 Transnational Environmental Law 199-233; L

J Kotze ‘The Anthropocene's Global Environmental Constitutional Moment’ (2015) Yearbook of International

Environmental Law (in press).

33

theoretical perspective (using the work of Ackerman94

on constitutional moments, and Barendt95

and Ridley96

on constitutionalism) and a more practical, nationally-specific perspective (using in

particular Currie & de Waal’s analysis of the Bill of Rights97

) in order to accurately describe,

then critique the legal architecture for water governance in South Africa. This supports the

ensuing analysis (in Chapter Four) of the jurisprudence of the Constitutional Court.

Chapter Four: ‘Socio-economic rights in the Constitutional Court’, analyses decisions of the

Court, and the relationship between the Court and government (including interpretation of

legislation and policy), both generally, and specifically regarding economic, social and cultural

rights (including the so called environmental right98

) in the Constitution’s Bill of Rights. It is

argued that understanding the relationship between South Africa’s highest court, and the socio-

economic rights in the Constitution is crucial to identifying what potential there is for achieving

access to sufficient water (one such socio-economic right) through traditional legal and

regulatory means (and by implication, what are the limits of this potential?).99

In particular this

raises questions about the impact that conferring a right to water on people has on their

achieving concomitant access to water (a central question in this thesis, expressed succinctly by

Bond, and others, as reaching the limits of ‘rights talk’100

). It is argued that there are limitations

to the Constitutional Court’s ability to pursue significant social transformation, and that many of

these limitations can be considered legitimate, by recourse to entrenched constitutional values

(including the rule of law, and separation of powers): A position typically acknowledged as

judicial restraint, but when taken to its extreme, is labelled by the author as ‘judicial

managerialism’.101

But an alternative interpretation of the Court’s interaction with socio-

economic rights, is also postulated, emphasising the developmental importance of a dynamic,

evolutionary understanding of the Court’s role in relation to these rights. Rather than asking

what is the legitimate role of the Constitutional Court? (a question that expects a static answer),

94

B Ackerman We the People, Volume 1: Foundations (Harvard University Press, 1993); B Ackerman We the

People, Volume 2 (Harvard University Press, 1998). 95

E Barendt ‘Is there a United Kingdom Constitution?’ (1997) 17 Oxford Journal of Legal Studies 137-145. 96

FF Ridley ‘There is no British Constitution: A dangerous case of the Emperor’s Clothes’ (1988) Parliamentary

Affairs 340-361. 97

I Currie & J de Waal The Bill of Rights Handbook (6th

ed, Juta, 2013). 98

Section 24 Constitution of the Republic of South Africa, 1996. 99

See generally S Liebenberg Socio-economic Rights: Adjudication Under a Transformative Constitution (Juta,

2010). 100

P Bond ‘Water rights, commons and advocacy narratives’ (2013) 29 South African Journal of Human Rights

125, 125. 101

This term was originally coined by the author in the following publication: N Cooper & D French ‘The Right to

Water in South Africa: Constitutional Managerialism and a Call for Pluralism’ in E Blanco & J Razzaque (eds)

Natural Resources and the Green Economy: Redefining the Challenges for People, States and Corporations

(Martinus Nijhoff, 2012) 111.

34

instead the question ‘what is currently the legitimate role of the Constitutional Court?’ is asked:

an idea referred to by the author as ‘liminal constitutionalism’. The chapter concludes by

considering the consequences of reaching the limits of ‘rights talk’ (particularly regarding

achieving access to sufficient water), and the epistemic spaces that may open up as a result.

Chapter Five: ‘Water Stories, Community organisation and ‘commons thinking’ ’, begins by

considering whether there are sufficiently similar characteristics across myriad

community/communal/co-operative/commons organisational modes to warrant discussion of

these within a single (albeit broad) paradigm; concluding that there is a discernible set of

characteristics with which to explore water governance through commons thinking. To this end,

the work of Ostrom102

and Harvey103

are particularly important. The history of commoning in

various parts of the world is traced, in order to locate commons thinking within a rich and

complex mixture of ancient traditions, indigenous knowledge systems and postmodern theory.

As such, it is argued that commons thinking, applied to helping achieve access to sufficient

water, is capable of reimagining water governance to effectively respond to old and new

problems causing insufficient water access. Of particular note here is the emerging shift from

government to governance, and consequently the growing importance of multi-level governance

and grass roots organisations, both of which prioritise stakeholder participation and

enfranchisement.104

Also, acknowledgment of so-called vernacular law, which governs the commons in more or less

formal ways, presents an important opportunity to reimagine legal structures for more equitable

and effective water governance. Such a reimagination is started in this chapter. It is argued that

such emphasis on participation and enfranchisement supports the inclusion within this thesis, of

the voices of water-poor people, and their stories. To this end the chapter considers the

enfranchising potential of narrative, before reporting on, and analysing the interviews

conducted, and their connection to the arguments in the current and preceding chapters.

102

See for example E Ostrom Governing the Commons: The Evolution of Institutions for Collective Action

(Cambridge University Press, 1990); E Ostrom et al ‘Revisiting the Commons: Local Lessons, Global Challenges’

(1999) 284 Science 278. 103 D Harvey ‘The Future of the Commons’ (2011) Radical History Review 104. 104

See P Jon ‘Introduction: Understanding Governance’ in P Jon (ed) Debating Governance: Authority, Steering

Democracy (Oxford University Press, 2000); D M Trubek & L G Trubek ‘New Governance & Legal Regulation:

Complementarity, Rivalry, and Transformation’ (2007) University of Wisconsin Law School, Legal Studies

Research Paper Series Paper No. 1047.

35

In Chapter Six ‘Conclusion: Achieving access to sufficient water for everyone, for ever’, the

central assertions of the thesis (including its originality) are summarized, before ‘zooming out’

again to consider the wider regional and global challenges to achieving access to sustainable,

equitable and efficient access to water; reconnecting analysis at the international level with

discussion of the commons. The chapter acknowledges that there are multiple dimensions to

the challenge of achieving access to sufficient water, which lie outside the legal/regulatory space,

and consequently (at least partially) outside the purview of this thesis. However, two such

dimensions are briefly included at this point, in order to locate this research within arguably the

two most important emerging areas of water- related scholarship; new water technology, and

water security in the context of the Anthropocene.

1.7 Main argument and originality of thesis

As the ensuing analysis of international and national water governance will reveal and support,

the central argument of this thesis is that a (human/constitutional) rights-based approach to

water access, operationalized within the current, dominant, ‘water-as-commodity’ paradigm, will

not achieve the goal of universal access to sufficient water. At least part of the solution to this

failure of a rights-based approach (referred to throughout as ‘rights talk’) lies in commons

thinking, and the adoption and advancement of a ‘water-as-commons’ paradigm for water

governance.

This two-part (diagnosis/prognosis) argument is premised on four crucial assertions. First,

notwithstanding the declarative importance of international water governance (encompassing

international human rights law, and international development goals-based initiatives) people’s

rights claims to water, are better made at national (or even local) level. Second, the current

configuration of a right to water - as an individual right, to be progressively fulfilled within the

limitations of the available resources of the State – is ill-suited to achieving universal access to

water. Third, the interpretation and application by the Courts, of such a right is severely limited

by judicial restraint. The consequence of this is that the transformative potential of the right is

further constrained. Fourth, the thoroughly different conception of water that ‘commons

thinking’ supports, presents an important opportunity to reimagine water governance in ways

that are more sustainable, more equitable, and more enfranchising than is the status quo.

Much of the originality of this thesis comes from its methodological design, which combines

more traditional legal scholarship with narrative inquiry, explicitly calibrated to give voice to

water-poor people, in order to reflect upon the implications of their stories, and crucially, to

36

learn from their praxis. If we listen carefully to these stories, whispers of vernacular law and law-

like expressions begin to be heard, and these should be heeded by anyone serious about

realizing the goal of access to sufficient water for everyone, forever.

37

2 Water governance at the

international level ‘On July 28

th

2010 the United Nations General Assembly adopted an historic resolution

recognizing the human right to safe and clean drinking water and sanitation as “essential for the

enjoyment of the right to life”. For those of us in the balcony of the General Assembly that day,

the air was tense with suspense… Bolivian UN Ambassador Pablo Solon introduced the

resolution… “Water is life,” he said.

But then he laid out the tragic and growing number of people around the world dying from lack

of access to clean water… every three-and-a-half seconds in the developing world, a child dies of

water-borne disease. Ambassador Solon then quietly snapped his fingers three times and held

his small finger up for a half second. The Generally Assembly fell silent. Moments later, it voted

overwhelmingly to recognize the human right to water and sanitation. People on the floor

erupted in cheers.’

Maude Barlow105

‘A man looking at reality brings his own limitations to the world. If he has strength and energy

of mind the tide pool stretches both ways, digs back to electrons and leaps space into the

universe and fights out of the moment into non-conceptual time. Then ecology has a synonym

which is ALL’

John Steinbeck106

2.1 Introduction

General Assembly Resolution number 64/292107

, witnessed by Barlow, recognizing the right to

water and sanitation was adopted with 122 votes in favour, none against, and 41 abstentions. It

represents for the first time, recognition of the right to clean water and sanitation at the

international level, and acknowledges that both are essential for realising all human rights.

105

M Barlow Our Right to Water: A People’s Guide to Implementing the United Nations’ Recognition of the Right

to Water and Sanitation. Available at: <http://documents.foodandwaterwatch.org/doc/RTW-

Cdn.pdf#_1.195890220.1020496576.1429985769> (Last accessed 27 July 2016). 106

J Steinbeck Sea of Cortez: A leisurely journal of travel and research (The Viking Press, 1951). 107


A/RES/64/292 (3 August 2010). Hereafter UN GA resolution 64/292.

38

Affirmed and supported by the corresponding Human Rights Council Resolution108

two months

later, the human rights to water and sanitation are now explicitly confirmed as being part of

international law, although not legally binding on States.109

Together these two resolutions mark

the culmination of decades of efforts to acknowledge water as a human right at the international

level.

This chapter begins by charting the development of a internationally acknowledged right of

access to water, and by examining the relevant international legal instruments through which

this right has been declared, affirmed and promulgated. Consideration is given to the nature,

substance and procedural requirements of this right and ultimately to its justiciability.

The legal basis, binding obligations, and normative status of the right of access to water, are

analysed, before considering the degree to which the emerging rights-based approach to water

access connects with global (sustainable) development approaches to improving people’s access

to water; addressing the relationship between rights-based and development-based approaches

to water governance. Finally both of these are considered in the context of global

environmental constraints and exigencies, in order to better understand the interconnected

challenges facing any meaningful international approach to ensuring access to sufficient water in

the present and future global contexts.

2.2 History of a contested right

Since access to sufficient clean water is undoubtedly necessary for dignified life, it may be

expected that a human right to water has long been acknowledged. Indeed it is most surprising,

initially at least, to discover that water is not mentioned, much less explicitly protected as a

human right in the Universal Declaration of Human Rights110

or the International Covenant on

Economic Social and Cultural Rights111

. This is perhaps even more surprising given that rights to

108

United Nations Human Rights Council Resolution A/HRC/RES/15/9 “Human Rights and Access to Safe

Drinking Water and Sanitation”, adopted 30 September 2010. Hereafter UN HRC Resolution 15/9. Note the

mandate, responsibilities and functions of the Human Rights Council are outlined in GA Res. 60/251 Human

Rights Council. Available at <http://www2.ohchr.org/english/bodies/hrcouncil/docs/A.RES.60.251_En.pdf> (Last

accessed 27 July 2016). These include the duties to make recommendations to the UN General Assembly for the

further development of international law in the field of human rights; and to make recommendations with regard

to the promotion and protection of human rights (paragraph 5 (c) and (i)). 109

Ibid. Note the above mandate of the Human Rights Council does not include empowerment to make legally-

binding resolutions. 110

Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III), 3 U.N. GAOR

(Resolutions, part 1) at 71, U.N. Doc. A/810 (1948). Hereafter UDHR. 111



(1966). Hereafter ICESCR.

39

food, clothing, housing, medical care and social security, amongst other economic and social

rights, are explicitly listed in the UDHR112

and ICESCR.113

2.2.1 Conspicuous absence

There are several interpretations of the reasons for the absence of any mention of water.

Perhaps particularly relevant to the absence of water from the UDHR is the era in which it was

adopted.114

The UDHR was approved by the UN General Assembly in December 1948, in the

aftermath of World War II and in the wake of the United Nations’ Charter, the main emphasis

of which was international security (with brief mention of human rights and fundamental

freedoms)115

. As such one role of the UDHR can be understood as seeking to provide a more

expansive interpretation of the UN Charter’s human rights provisions. As the full horror of

atrocities committed during the war began to impact on the collective psyche, including the

international community, the UDHR’s chief concern in declaring human rights standards, may

have been to emphasise those rights most obviously violated or disregarded during the war

period. Such rights include for example Articles 2 and 7 prohibiting discrimination; Article 3

regarding life, liberty and security of person; Article 4 prohibiting slavery and servitude; Article

5 prohibiting torture; and, Article 9 prohibiting arbitrary arrest, detention and exile.116

Therefore, while it is the case that rights to food, clothing and other social and economic

rights117

, are present in the UDHR, there is at least an apparent prioritisation of civil and

political rights118

(including the right to life, and rights protecting individuals from slavery,

torture, arbitrary arrest and the like) above social and economic rights. Of the 30 Articles within

the UDHR, the first 20 can be more accurately categorised as civil and political, than as social

and economic rights. Indeed, not only are social and economic rights outnumbered two to one,

but they are also relegated to the final third of the declaration. Such an analysis of the relative

balance within the UDHR of civil and political, and social and economic rights, and the

consequent absence of water from explicit mention (because civil and political rights received

priority over social and economic rights), may link to a second interpretation.

112

UDHR Article 25. 113

ICESCR Articles 11 and 12. 114

L Hunt Inventing Human Rights: A History (WW Norton & Company, 2007) 203-7. 115

UN Charter Article 55 (c): ‘[The United Nations shall promote] universal respect for, and observance of, human

rights and fundamental freedoms for all without distinction as to race, sex, language, or religion’. Available at: <

http://www.un.org/en/documents/charter/chapter9.shtml> (Last accessed 27 July 2016). 116

UDHR, Articles 2, 3, 4, 5, 7, 9. 117

R Gavison ‘On the relationships between civil and political rights, and social and economic rights’ (2003) The

globalization of human rights 23-55, 25. 118

Ibid 40.

40

Article 25 (1) of the UDHR states:

‘Everyone has the right to a standard of living adequate for the health and well-being of himself

and his family, including food clothing, housing and medical care and necessary social services,

and the right to security in the event of unemployment, sickness, disability, widowhood, old age

or other lack of livelihood in circumstances beyond his control’.119

The use of the word ‘including’ at the beginning of the list of material requirements for an

adequate standard of living suggests that this list is not intended to be exhaustive. Such an

analysis allows the fact of the absence of water from this list to be understood in a way that does

not exclude assertion of a right to water. If the list is simply indicative of the requisite conditions

for an adequate standard of living (which, with reference to the preamble, must be a standard of

living in keeping with dignified existence120

) then there is scope to add other material

requirements necessary for such a standard of living. Determining whether a particular

condition should be considered, by implication to be part of this list then depends on whether

such a condition is essential for a standard of living commensurate with dignified existence. It is

precisely this interpretation that leads McCaffrey to conclude as follows:

‘It is obvious that water, even more than food, is essential to “health and well-being”; it should

therefore be taken to be included by necessary implication’.121

This argument, that water can (or should) be included ‘by necessary implication’ is supported

by General Comment 15 which asserts a right to water based on the intrinsic connection

between access to water and the right to food122

as declared in Article 11 (1) of the ICESCR123

(closely echoing the right to food in Article 25 (1) of the UDHR124

).

119

UDHR Article 25 (1). Emphasis added. 120

UDHR Preamble. 121

S McCaffrey ‘The Human Right to Water’ in E Brown et al (eds) Fresh Water and International Economic Law

(Oxford University Press, 2005) 93, 96. 122

See General Comment 15, paragraphs 2, 6, 7. 123

ICESCR Article 11(1): ‘The States Parties to the present Covenant recognize the right of everyone to an

adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the

continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the

realization of this right, recognizing to this effect the essential importance of international co-operation based on

free consent.’ 124

UDHR Article 25 (1): ‘Everyone has the right to a standard of living adequate for the health and well-being of

himself and of his family, including food, clothing, housing and medical care and necessary social services, and the

right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood

in circumstances beyond his control.’

41

So the historical context of the UDHR may have influenced the prioritisation of civil and

political rights within the document. This in turn may help explain why those social and

economic rights listed, particularly in Article 25 do not include the essential requirement of

water: More attention was perhaps given to ensuring the comprehensive nature of those rights

set out in the earlier articles. Alternatively it may be that including a less than exhaustive list was

a deliberate technique to allow for appropriate interpretation. And it may of course be that

neither of these interpretations is correct. Indeed the inclusion of both civil and political rights

and social and economic rights within the same declaration, rather than separating them, as the

ICCPR125

and ICESCR subsequently did, may suggest that both groups of rights were

considered equally important, and inextricably linked.126

But whatever the case, the absence

from the UDHR of such a crucial component of life as water, should not be read as a criticism

of the document. The rights contained within the UDHR push far beyond those notions of

individual rights (such as equality before the law, and freedom of religion, expression and

participation in government) expressed in the seminal declarations that preceded it.127

Rather

the scope of the UDHR extends to declare amongst other things: equal universal suffrage;128

the

right to a nationality;129

the right to marry;130

and the right to work for a living wage.131

As such it

represents a progressive and expansive, if not exhaustive declaration.

Being adopted by the UN General Assembly, the legal status of the UDHR is the same as other

General Assembly resolutions; it is not binding. However, as already alluded to, the UDHR

significantly elaborates on the sparse reference to human rights in the UN Charter. It is now

generally accepted that the UDHR constitutes authoritative (and expansive) interpretations of

the human rights provisions in the UN Charter.132

As such, the UDHR is perhaps binding on

States by virtue of the binding nature of the Charter133

, rather than of the UDHR per se. It has

125

International Covenant on Civil and Political Rights, GA resolution 2200A (XXI) adopted 16 December 1966,

entered into force 23 March 1976. Available at:

<https://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668-English.pdf> (Last accessed

27 July 2016). Hereafter ICCPR. 126


globalization of human rights 23-55, 23.

127

See for example The Declaration of Independence, 1776; Declaration of the Rights of Man and Citizen, 1789;

UN Charter, 1945. 128

UDHR Article 21 (3). 129



UDHR Article 23 (3). 132

H Hurst ‘The Status of the Universal Declaration of Human Rights in National and International Law’ (1995)

25/287 Georgia Journal of International and Comparative Law 287- 397, 319. 133

UN Charter Article 2.

42

also been asserted that the UDHR should be considered as customary international law.134

But a

more realistic appraisal of its status, in light of the onerous requirements of identifiable state

practice and opinio juris sive necessitatis,135

is that only the civil and political rights within the

UDHR have attained the status of customary international law. Since Article 25 of the UDHR,

declaring the right to an adequate standard of living, clearly constitutes a social and economic

right, it would be difficult to derive a justiciable human right to water from the UDHR, even if it

is accepted that water is part, by implication, of the list of material requirements necessary for

an adequate standard of living.

Despite any subsequent developments towards becoming customary international law, the

UDHR at its inception, was never intended to be legally binding. Eleanor Roosevelt, chair of

the declaration’s drafting committee described the character and purpose of the UDHR as

follows:

‘It is not a treaty; it is not an international agreement. It is not and does not purport to be a

statement of law or legal obligation. It is a declaration of basic principles of human rights and

freedoms… to serve as a common standard of achievement for all peoples of all nations.’136

It is worth noting at this point that, as Higgins observes, ‘the passing of binding decisions is not

the only way in which law development occurs’.137

Bearing in mind the non-binding status of

General Assembly resolutions like the UDHR, Higgins’ insight is particularly relevant when the

impact of resolution 64/292 on the human right to water and sanitation is considered below, as

well as where discussion moves away from rights-based approaches, towards development goals.

But it is to the relevant legally binding treaties that attention now turns.

In contrast to the UDHR, the ICESCR and ICCPR (together referred to as the Covenants)

were explicitly adopted by the UN General Assembly as legally binding treaties; open to states

for accession and ratification. While the legal status of the Covenants is clearly different from

that of the UDHR, all three (along with the first optional protocol to the ICCPR) together form

the International Bill of Human Rights.138

Each Covenant acts as the implementing instrument

134


25/287 Georgia Journal of International and Comparative Law 287- 397, 319.

135

North Sea Continental Shelf Cases (FRG/Denmark; FRG/Netherlands) 1969 ICJ 3, 44 (Judgment of Feb. 20). 136

E Roosevelt, Chairman of the UN Commission on Human Rights. Quoted in H Hurst ‘The Status of the

Universal Declaration of Human Rights in National and International Law’ (1995) 25/287 Georgia Journal of

International and Comparative Law 287- 397, 318. 137

R Higgins Problems and Process: International Law and How We Use It (Oxford University Press, 1995) 24. 138


25/287 Georgia Journal of International and Comparative Law 287- 397, 318.

43

for civil and political rights, and for economic, social and cultural rights respectively.139

Therefore while it is difficult to see how the UDHR can directly yield justiciable rights, this is

not the case for the Covenants.

2.2.2 The International Covenant on Economic, Social and Cultural Rights, 1966

Considering the two Covenants in the International Bill of Human Rights, the ICESCR would

appear to be the most natural home for a human right to water. Access to water can perhaps be

expressed more easily as a social or socio-economic right, than a civil and political right (this is

not to ignore the political dimensions surrounding water rights and water justice140

). It is also a

right, which if it is to be fulfilled, requires considerable action and efforts on the part of States,

since more than 780 million people live without access to clean water, and 2.5 billion people do

not have access to adequate sanitation.141

The considerable size of this problem means that

immediate remedies are unlikely. Consequently any treaty obligation that imposes immediate

fulfilment of a human right to water would be impracticable. The concept of ‘progressive

realisation’142

at the heart of the ICESCR is therefore particularly appropriate in framing a

meaningful human right to water.

Articles 11 and 12 of the ICESCR both offer clear opportunities to assert that a human right to

water is an essential component part, respectively, of achieving an adequate standard of living143

and of enjoying the highest attainable standard of physical and mental health.144

In 2002 the

Committee on Economic, Social and Cultural Rights (CESCR), issued General Comment No.

15 on the right to water. This has since become a seminal statement on the existence and

legality of a human right to water, and a talisman for water-rights activists and scholars. The

main focus of General Comment 15 is an analysis of Articles 11 and 12, concluding that a

human right to water exists in international law. Because of its relevance to this thesis, and the

139



See S Farhana & A Loftus (eds) The right to water: Politics, governance and social struggles. (Routledge, 2013);

S Hellberg ‘Water, life and politics: Exploring the contested case of eThekwini municipality through a

governmentality lens’ (2014) 56 Geoforum 226-236.

141

UN Water <http://www.unwater.org/water-cooperation-2013/water-cooperation/facts-and-figures/en/> (Last


ICESCR Article 2: ‘Each State Party to the present Covenant undertakes to take steps, individually and through

international assistance and co-operation, especially economic and technical, to the maximum of its available

resources, with a view to achieving progressively the full realization of the rights recognized in the present

Covenant by all appropriate means, including particularly the adoption of legislative measures.’ Cf. ICCPR, Article

2: ‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its

territory and subject to its jurisdiction the rights recognized in the present Covenant.’ 143

ICESCR Article 11. 144

ICESCR Article 12.

44

importance which has been placed on it, analysis of General Comment 15 will form the basis of

the ensuing discussion.

Three discreet arguments are made to justify finding legal bases for a human right to water. First

in relation to Article 11, and to the list of material requirements therein, which are necessary for

an adequate standard of living, the interpretation of the CESCR is clear: this list should be

considered to be indicative, rather than exhaustive.145

Essentially the same argument is made

here as above in relation to Article 25 of the UDHR: Namely that using the word ‘including’ at

the beginning of the list of material requirements for an adequate standard of living allows for

the addition to this list of a human right to water, since water is undoubtedly an additional,

essential requirement for an adequate standard of living.

A second argument is that a right to water is necessary in order to protect rights already

(explicitly) given in Articles 11 and 12. In Article 11 adequate food, clothing and housing are all

listed as requirements for an adequate standard of living. It is asserted that a right to adequate

food and to adequate housing are not capable of fulfilment without a right to water also.146

Paragraph 2 of the General Comment makes a further connection between a right to food and

a right to water by including cooking in the list of necessary uses of water. The link between

adequate housing and water has previously been made at length by the CESCR.147

Regarding Article 12: ‘the right of everyone to the enjoyment of the highest attainable standard

of physical and mental health’, the Article includes steps to be taken to achieve fulfilment of

this right. These steps include provision for the reduction of infant mortality and for the healthy

development of the child; and the prevention, treatment and control of epidemic, endemic,

occupational and other diseases.148

Access to safe, clean water is stated generally as a

prerequisite for the pursuance of these steps towards the fulfilment of the right to health.149

Paragraph 8 of General Comment 15 specifically addresses the requirement of water for the

improvement of all aspects of environmental and industrial hygiene:

145

General Comment 15, paragraph 3. 146

See General Comment 15, paragraphs 1 and 3. 147

General Comment No. 6 (1995) on the economic, social and cultural rights of older persons. U.N. Doc.

E/1996/22 at 20. Available at < http://www1.umn.edu/humanrts/gencomm/epcomm6e.htm> (Last accessed 27 July

2016). Paragraphs 5 and 32. Note the connection between adequate housing and water was also made

domestically, in the South African case of Government of the Republic of South Africa v. Grootboom & Others,

2001 (1) SA 46 (CC), discussed at length below at 4.6.2. 148

ICESCR Articles 12 (2) (a) and (c). 149

General Comment 15, paragraph 3.

45

‘Environmental hygiene, as an aspect of the right to health under article 12, paragraph 2 (b), of

the Covenant, encompasses taking steps on a non-discriminatory basis to prevent threats to

health from unsafe and toxic water conditions.’150

Such unsafe and toxic water conditions also relate to the availability and accessibility of the right

to adequate food (listed in Article 11).151

Therefore, with the exception of the right to adequate

clothing (in Article 11), General Comment 15 states that access to sufficient water is essential to

the protection of those rights explicitly recognised in Articles 11 and 12. For this reason it is

asserted that a human right to water should be acknowledged.

A third argument is that a human right to water should be recognised as existing within the

ICESCR because such a right ‘has been recognized in a wide range of international documents,

including treaties, declarations and other standards’.152

These international documents will be

discussed in more detail below at 2.2.4. But the relevance of recognition of a right to water in

such documents is that they inform the interpretation and clarification by the CESCR of

provisions in the ICESCR.153

Together, the three arguments presented in General Comment 15 for interpreting a human

right to water within the ICESCR, are compelling. But in order to assess the legal ramifications

of General Comment 15, it is necessary first to consider the implementation apparatus of the

ICESCR, including the status and function of the CESCR.

Part IV154

of the ICESCR outlines the duties of States parties to report on the progress made in

achieving observance of the Covenant rights. It also outlines the duties and competencies of the

United Nations Economic and Social Council (ECOSOC) regarding consideration of these

reports, and communication with other UN specialised agencies on matters arising from these

reports, in order to contribute to the ‘effective progressive implementation’155

of the Covenant.

In 1978 ECOSOC adopted a sessional working group on the implementation of the ICESCR,

in order to support ECOSOC in consideration of the reports submitted by States Parties.156

The

150


Ibid. See also General Comment No. 12 (1999) on the right to adequate food. U.N. Doc. E/C.12/1999/5.

Available at < http://www1.umn.edu/humanrts/gencomm/escgencom12.htm> (Last accessed 27 July 2016).

Paragraphs 12 and 13. 152


I T Winkler The Human Right to Water: Significance, Legal Status and Implications for Water Allocation

(Hart, 2014) 40. 154

See ICESCR, Articles 16-25. 155

ICESCR, Article 22. 156

ECOSOC Decision E/1978/10 of 3 May 1978: Composition of the Sessional working group on the

implementation of the International Covenant on Economic, Social and Cultural Rights.

46

composition and organisation of this working group were gradually formalised, and in 1982 the

group was re-named as the ‘Sessional Working Group of Government Experts on the

Implementation of the International Covenant on Economic, Social and Cultural Rights’, which

became known as the ‘Group of Experts’.157

In 1985 this group changed its name again, to become the ‘Committee on Economic, Social

and Cultural Rights’ (CESCR).158

The size of the Group (now Committee) increased from 15 to

18 members, all of whom were required to be human rights experts, each serving in their

individual capacities, rather than as representatives of their respective national governments.159

The composition of members was also formally required to give due consideration to

geographical distribution, as well as to the representation of different social and legal systems.160

Nine years after the ICESCR entered into force161

these changes brought the Committee to what

remains its current structure. They also brought it towards a position of equivalence with the

Human Rights Committee (HRC); the corresponding body for the ICCPR, if not total parity

(discussed below at 2.2.3).162

The role of the CESCR has continued to mature. Its original task; to support ECOSOC in

consideration of the reports submitted by States Parties, has been supplemented by a growing

investigative role regarding Covenant implementation. Equally its advisory role has become

more developed and more formalised, evinced by its preparation, since 1989 of General

Comments163

, in the same fashion as the HRC.164

This expanded portfolio of activities places the

CESCR as ‘the central “quasi-judicial” authority of the ICESCR.’165

157

ECOSOC Resolution 1982/33: Review of the composition, organization and administrative arrangements of the

Sessional Working Group (of Governmental Experts) on the Implementation of the International Covenant on

Economic, Social and Cultural Rights of 27th

Plenary Meeting, 6 May 1982. 158

ECOSOC Resolution 1985/17: Review of the composition, organization and administrative arrangements of the

Sessional Working Group of Governmental Experts on the Implementation of the International Covenant on

Economic, Social and Cultural Rights, of 28 May 1985. 159

Ibid. 160

Ibid. 161

The ICESCR entered into force on 3 January 1976. See ICESCR, Article 27. 162

SMA Salman & S McInerney-Lankford The Human Right to Water: Legal and Policy Dimensions (World

Bank, 2004) 38. 163

General Comment No. 1 (1989) Reporting by States parties. U.N. Doc. E/1989/22.

<https://www.escr-net.org/docs/i/425212> (Last accessed 27 July 2016). 164

Preparation of General Comments by the CESCR was subsequently endorsed by UN General Assembly

resolution A/Res/42/102. 165


Bank, 2004) 39.

47

The implications of this for determining the status of General Comment 15 (which was issued

in 2002, over a decade after the CESCR had begun to adopt its more formal, neutral,166

investigative and quasi-judicial roles), are that all CESCR General Comments, including

General Comment 15 on the right to water, should be considered to be authoritative and

legitimate interpretations of the ICESCR. Therefore the Committee’s articulation of a human

right to water; as a derivative right,167

necessary to meet the explicit rights set out in Articles 11

and 12, should be considered to be an authoritative and legitimate one.168

Taken as such,

General Comment 15 affirms a human right to water, with corresponding obligations on States

party to the Covenant. However, all CESCR General Comments stop short of being legally

binding on States parties. Because the CESCR was originally established by ECOSOC,

appreciation of the mandate of ECOSOC is crucial here. Established under Article 62 of the

UN Charter, ECOSOC is empowered only to make recommendations to the General

Assembly, UN members and relevant specialised agencies.169

But even if General Comment 15 established that a legally binding human right to water existed

within the ICESCR, such a right would not require immediate fulfilment. Consequently there is

no corresponding mechanism for immediate enforceability. Rather, as set out in Article 2, the

relevant obligations of each State party are to ‘take steps… to the maximum of its available

resources, with a view to achieving progressively the full realization of the rights recognized in

the present Covenant by all appropriate means…’170

It would seem therefore that while General

Comment 15 articulates an authoritative human right to water, what States are practically

obliged to do is to take steps, to the maximum of their resources to progressively realise this

right. No doubt, such an obligation, if taken seriously, would result in improvements to water

access globally. What it would not do is to immediately, or indeed swiftly, realise this right,

given the size of the task. Indeed the limitations of available resources and the acceptability of

progressive realisation (as opposed to immediate realisation or realisation within in a set time

frame for instance) coupled, with water scarcity, means that in some States enjoyment of a

human right to water may never be achieved.

166

ECOSOC Resolution 1987/5 contains initiatives designed to make the work of the CESCR more judicial and

less political, including inviting non-governmental organisations to make appropriate written statements towards

contributing to the realisation of Covenant rights. See paragraph 6. 167

See in particular General Comment 15, paragraphs 1 and 3, and the first and second arguments as discussed

above. 168


Bank, 2004) 43. 169

UN Charter, Article 62 (3) and (4). See also J Rehman International Human Rights Law (2nd

ed, Pearson, 2010)

at 39. 170

ICESCR, Article 2 (1).

48

However, even within the general parameters of progressive realisation, the obligation on States

parties in Article 2 (2) ‘to guarantee that the rights enunciated in the present Covenant will be

exercised without discrimination of any kind’, could be interpreted as requiring immediate,

rather than progressive interpretation (based on the ‘negative’ quality of this obligation, rather

than its ‘positive’ counterparts). In the same way the so-called ‘core obligations’ in General

Comment 15 (paragraph 37) are stated as being of immediate effect. These include:

(a) To ensure access to the minimum essential amount of water, that is

sufficient and safe for personal and domestic uses to prevent disease;

(b) To ensure the right of access to water and water facilities and services on a non-

discriminatory basis, especially for disadvantaged or marginalized groups;

(c) To ensure physical access to water facilities or services that provide sufficient, safe and

regular water; that have a sufficient number of water outlets to avoid prohibitive waiting times;

and that are at a reasonable distance from the household;

(d) To ensure personal security is not threatened when having to physically access to water;

(e) To ensure equitable distribution of all available water facilities and services;

(f) To adopt and implement a national water strategy and plan of action addressing the whole

population; the strategy and plan of action should be devised, and periodically reviewed, on the

basis of a participatory and transparent process; it should include methods, such as right to

water indicators and benchmarks, by which progress can be closely monitored; the process by

which the strategy and plan of action are devised, as well as their content, shall give particular

attention to all disadvantaged or marginalized groups;

(g) To monitor the extent of the realization, or the non-realization, of the right to water;

(h) To adopt relatively low-cost targeted water programmes to protect vulnerable and

marginalized groups;

(i) To take measures to prevent, treat and control diseases linked to water, in particular ensuring

access to adequate sanitation.’

The basis for asserting core obligations which are to be immediately fulfilled, comes from

General Comment No. 3 (1990), in which the CESCR confirms that ‘States parties have a core

obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the

rights enunciated in the Covenant.’171

However, it is difficult to see how some of these could be

expected to be realised immediately. For instance, obligation (c), which requires ensuring access

to water facilities or services which have a sufficient number of water outlets to avoid prohibitive

waiting times, is likely to require planning and construction, with both time and financial

resource implications. But other stated obligations, including non-discrimination and

171

General Comment No. 3 (1990), The nature of States parties’ obligations. U.N. Doc. E/1991/23. Available at

<https://www1.umn.edu/humanrts/gencomm/epcomm3.htm> (Last accessed 27 July 2016).

49

monitoring the extent to which the human right to water is being realised, can more realistically

be deemed appropriate for immediate implementation. With these few exceptions, it seems

that the practical justicability172

of a human right to water based on the ICESCR is limited,

principally due to the provision within the Covenant, for progressive realisation. But it is also

due to the non-binding status of General Comment 15, as well as to the absence within the

ICESCR of facility to bring individual petitions regarding rights violations. Because of these

limitations, the potential use of the ICCPR in identifying a justiciable human right to water is

now considered.

2.2.3 The International Covenant on Civil and Political Rights, 1966

Unlike the ICESCR, States party to the ICCPR accept an immediate obligation to ensure that

the rights recognised in the Covenant are available to everyone within the territory of the

State.173

Such an obligation is relevant to any discussion of the scope of these Covenant rights,

and to interpreting States’ corresponding specific obligations. Also relevant here is the

particular design of the implementation mechanisms for the ICCPR, in contrast to that of the

ICESCR discussed above, and the consequences of such differences for State parties.

Under Article 28 of the ICCPR the Human Rights Committee was established in 1976. The

Committee is comprised of 18 human rights experts, elected by secret ballot by the States

parties, to serve a four-year term.174

Their principal functions are to conduct dialogue with the

States parties, hear inter-state complaints, and to ‘consider’ and ‘study’ the mandatory national

compliance reports of each State party.175

Additionally, the Committee issues general

comments (for example General Comment No. 6 on the right to life, discussed below). Under

the first Optional Protocol to the Covenant, the Committee also has competence to ‘receive

and consider communications from individuals subject to its jurisdiction who claim to be

victims of a violation by that State Party of any of the rights set forth in the Covenant.’176

172

While theoretically, questions relating to whether State parties are taking steps to the maximum of their available

resources, in order to progressively realise the right to water, are justiciable (that is, capable of being decided by an

arbiter), practically the real challenge is ‘linking the expectations of individuals as rights-holders with the duties

owed by others.’ See S R Tully ‘The Contribution of Human Rights to Freshwater Resource Management’ (2004)

Yearbook of International Environmental Law 101, 103. 173

ICCPR, Article 2 (1): ‘Each State Party to the present Covenant undertakes to respect and to ensure to all

individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant…’ 174

See ICCPR, Articles 31 and 32. 175

See ICCPR, Articles 40 and 41. 176

Article 1, Optional Protocol to the ICCPR, 1966 entry into force 23 March 1976. Available at

<http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPCCPR1.aspx> (Last accessed 27 July 2016).

50

In short, the implementation mechanisms for the ICCPR are considerably more robust, than

their counterparts for the ICESCR. Furthermore, the effect of the first Optional Protocol

(although only applying to individuals in States that are party to it) presents a direct line of

justicability between individual rights-holders and their relevant State. Consequently not only do

the obligations within the ICCPR require immediate fulfilment, but measures to monitor this

are well developed, and there is recourse available for individuals who suffer from States’

failures to meet these obligations.

Focusing again on the challenge of inferring a human right to water, the specific content of the

ICCPR must be considered, in particular, Article 6. This states that:

‘[E]very human being has the inherent right to life. This right shall be protected by law. No one

shall be arbitrarily deprived of his life.’177

Since water is essential for life, it may be asserted that the right to life stated above must include

access to at least a quantum of water sufficient for maintaining existence (even if this falls short

of that deemed sufficient for a dignified existence), in order that no one is arbitrarily deprived

of their life. However, it must be noted first that this right to life is expressed within the ICCPR,

and not the ICESCR. As such, taking a traditional view of the distinction between these two

groups of rights, the right to life, along with the other rights in the ICCPR imposes only a

negative obligation on the states party, requiring them to refrain from interfering with an

individual’s right (to life, in this case).178

This is in contrast to the nature of state obligations

regarding social and economic rights, as stated in the ICESCR. Here, there is a positive

obligation on states, requiring action in order to fulfil such rights.179

Interpreted in this way, the

right to life, in relation to access to water, requires nothing more than that those states parties

refrain from removing or otherwise interfering with individual’s water supply in a way that

would cause their deaths. It would not impose any obligation to provide water for individuals

currently without, in order to avoid their deaths.

This distinction of state obligations is based on a perceived hierarchy between civil and political

rights, as over social and economic rights, which in turn is based on a combination of theory

and pragmatism. Liberal theories of democracy assert that civil and political rights must be

robustly protected (at the national level usually by constitutional entrenchment) in order to

177

ICCPR, Article 6. 178


(Hart, 2014) 49. 179

Ibid.

51

ensure a functioning democratic state.180

Such a state is then able to address social and economic

challenges as they deem appropriate, and in relation to their available resources.181

Practically,

such a situation also avoids states from being obliged to meet positive rights obligations, which

they are not able to afford, or indeed, that as a democratically elected executive, have chosen

not to prioritise. Examples abound of the influence of such liberal thought on national

constitutional settlements (and the consequent absence of social and economic rights in

national constitutions, until recently182

). But the archetype is the United States Constitution183

,

throughout which the clear emphasis is on the protection of the civil rights (or liberties) of

individuals from the state, and which consequently contains numerous negative obligations

upon the state.184

No social and economic rights are entrenched in the US Constitution, despite

attempts in 1944 by the then President Franklin Roosevelt, to support a ‘second Bill of Rights’,

guaranteeing a panoply of social and economic rights. While this endeavour failed, some of

these rights found expression in the UDHR shortly afterwards.185

For the foregoing reasons then, the right to life within the ICCPR, as traditionally interpreted,

does not support a human right to water. However, an alternative and more recent

interpretation of states’ rights obligations emphasises a ‘tripartite’ approach to realisation of

human rights generally, regardless of whether they are classed as civil and political or social and

economic. Instead, obligations to respect, protect and fulfil human rights are emphasised, each

of which is relevant to all of the rights in the ICCPR and ICESCR, albeit to different degrees.186

Such an approach is complemented by the Human Rights Committee interpretation of the

right to life in Article 6 ICCPR. Beginning with a warning that the right to life should not be

interpreted narrowly,187

it asserts that the protection of the inherent right to life ‘requires that

States adopt positive measures’.188

By way of illustration of such positive measures, the comment

180



Ibid. 182

The Constitution of the Republic of South Africa 1996 is an excellent example of a Constitution which has

codified and entrenched social and economic rights alongside civil and political rights in a comprehensive Bill of

Rights. This Constitution becomes the focus of attention in Chapters Three and Four of this thesis. 183

The Constitution of the United States of America, 1787. Available at < http://billofrightsinstitute.org/founding-

documents/constitution> (Last accessed 27 July 2016). 184

Ibid. See for example the 1st

, 2nd

, and 3rd

Amendments. 185

Center for Economic and Social Rights: < http://www.cesr.org/section.php?id=26> (Last accessed 27 July 2016). 186

See Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997) paragraph 4: Available

at <https://www1.umn.edu/humanrts/instree/Maastrichtguidelines_.html> (Last accessed 27 July 2016). 187

Human Rights Committee, General Comment No. 6, Article 6 (The right to life) HRI/GEN/1/Rev.9 (Vol. 1) 30

April 1982. Available at:

<http://ccprcentre.org/doc/ICCPR/General%20Comments/HRI.GEN.1.Rev.9(Vol.I)_(GC6)_en.pdf> (Last

accessed 27 July 2016). Hereinafter, HRC General Comment 6. See Paragraph 1. 188

Ibid. Paragraph 5.

52

goes on to implore States parties ‘to take all possible measures to reduce infant mortality and to

increase life expectancy, especially in adopting measures to eliminate malnutrition and

epidemics.’189

Clearly these measures, if implemented, would constitute significant positive

action and investment on the part of States, despite the corresponding right being found in the

ICCPR. Furthermore such problems as infant mortality, malnutrition and epidemics are all

connected to inadequate and/or unsafe water.190

This application of positive obligations to a civil

and political right represents a significant shift away from the traditional diametric view of civil

and political versus social and economic rights; negative versus positive obligations. It also

seems to raise possibilities regarding realising a justiciable right to water through an inherent

right to life.

But here again, consideration must be given to the status of General Comments, made this time

by the HRC. Under Article 40 (4) of the ICCPR the HRC is empowered to ‘transmit… such

general comments as it may consider appropriate, to the States parties’. These comments are to

be non-country specific.191

Ghandhi clarifies the purpose of such comments, as follows:

‘[to] make the Committee’s experience available for the benefit of all States Parties, so as to

promote more effective implementation of the Covenant; to draw the attention of States parties

to insufficiencies disclosed by a large number of reports; to suggest improvements in the

reporting procedure; to clarify the requirements of the Covenant; and to stimulate the activities

of States Parties and International Organisations in the promotion and protection of human

rights…’192

Despite having a longer history than the General Comments made by the CESCR, and despite

being mandated directly by the ICCPR from the inception of the Covenant, in contrast to the

CESCR, the HRC General Comments also are not legally binding on States parties. They are

however, considered as invaluable guides to the interpretation of particular Articles, and as

such, contribute to the jurisprudence on civil and political rights.193

Therefore General

Comment 6 on the right to life, while authoritative, does not impose a binding positive

obligation on States parties to immediately provide access to water.

189

Ibid. 190

See World Water Assessment Programme United Nations World Water Development Report 2: Water, a

shared Responsibility (Paris, 2006). 191

ICCPR, Article 40 (4). 192

P R Ghandhi The Human Rights Committee and the Right of Individual Communication: Law and Practice

(Ashgate Publishing Co, 1998) 25. 193

J Rehman International Human Rights Law (2nd

ed, Pearson, 2010) 119.

53

Indeed, the obligation of immediate fulfilment for ICCPR rights generally seems to lead away

from the conclusion that any of these Covenant rights (expansively interpreted so as to confer

positive obligations on States) can be used effectively to imply a legally-binding right to water.

Such a human right of access to sufficient water undoubtedly requires positive action by States

towards its fulfilment. Despite the willingness of the Human Rights Committee to urge States to

adopt positive measures relating to traditionally ‘negative’ rights, it nevertheless seems to remain

more appropriate that rights which require significant positive State action (including

commitments of time and financial resources) to fulfil should arise from within the ICESCR.

Therefore regarding a human right to water, there seems to be more potential for this to flow

from Articles 11 and 12 of the ICESCR (as discussed at 2.2.2) where consideration of

progressive realisation and available resources would apply. The alternative route of connecting

a human right to water with Article 6 of the ICCPR would involve conferring an obligation on

States parties to provide access to sufficient water for every individual immediately; an

obligation that many States would struggle to fulfil.

2.2.4 Emerging consensus and acceptance of a human right to water

Whatever the reasons may be for such conspicuous absence of a right to water from the

International Bill of Human Rights,194

and whatever the merits and limitations of deriving a

human right to water from the ICESCR or the ICCPR respectively, such a right has been

explicitly recognised in a range of international legal instruments (binding and non-binding)

since the 1977 UN Water Conference in Mar del Plata195

. Resolution II of that conference

declared that:

‘All peoples, whatever their stage of development and their social and economic conditions,

have the right to have access to drinking water in quantities and of a quality equal to their basic

needs.’196

Similarly the 1979 Convention on the Elimination of All Forms of Discrimination Against

Women (CEDAW)197

, a specialised binding legal instrument setting out an agenda to end

discrimination against women, provided the following in relation to a human right to water:

194

The International Bill of Human Rights refers collectively to the UDHR, ICCPRs (along with its two optional

protocols, and ICESCR. 195

United Nations Report of the United Nations Conference on Water, Mar del Plata 1977, E/Conf.70/29 ch I.

Available at < http://www.internationalwaterlaw.org/bibliography/UN/Mar_del_Plata_Report.pdf> (Last accessed

27 July 2016). Note this is a non-binding resolution. 196

Ibid at 66.

54

‘States parties shall take all appropriate measures to eliminate discrimination against women in

rural areas… in order to ensure to such women the right… to enjoy adequate living conditions,

particularly in relation to housing, sanitation, electricity and water supply…’

The 1989 Convention on the Rights of the Child (CRC)198

also provides binding obligations on

States parties, to combat disease and malnutrition ‘through the provision of adequate nutritious

foods and clean drinking water’. Therefore States parties to these Conventions have assumed

international legal obligations to ensure that respectively, women in rural areas, and children,

have access to water. Implementation of these obligations is monitored by the CEDAW

Committee and by the Committee on the Rights of the Child, to which States parties must

submit regular reports.199

However, it must be noted that neither CEDAW nor the CRC

articulates a general human right to water.

Throughout the 1990s and early 2000s a series of non-binding instruments reiterated a human

right to water in various forms, evincing its wide-ranging acceptance, and helping to keep the

right to water at the forefront of the international human rights and development agendas

during this period. By way of example, Principle 4 of the 1992 Dublin Statement on Water and

Sustainable Development200

(already discussed above at 1.5.4) affirmed the importance of

recognising ‘the basic right of all human beings to have access to clean water and sanitation at an

affordable price.’201

The 1994 Programme of Action of the UN International Conference on

Population and Development202

declared that all individuals ‘have the right to an adequate

standard of living for themselves and their families, including adequate food, clothing, housing,

water and sanitation. Of particular note here is that this list of the material conditions necessary

for an adequate standard of living is identical to that set out in Article 11 of the ICESCR, with

the addition of water and sanitation. The argument made in General Comment 15 and

elsewhere that the Article 11 list is non-exhaustive is supported by this ‘updated’ list, which adds

essential material conditions, explicitly, rather than implicitly as the CESCR has subsequently

done.

197

UN Doc. A/34/46 (1979). Entered into force 1981. Available at

<http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#intro> (Last accessed 27 July 2016). Article 14

(2)(h). 198

U.N. Doc. A/44/49 (1989). Entered into force 1990. Available at

<http://www.ohchr.org/en/professionalinterest/pages/crc.aspx> (Last accessed 27 July 2016). Article 24(2)(c). 199

See <http://www.ohchr.org/EN/HRBodies/CRC/Pages/CRCIndex.aspx> (Last accessed 27 July 2016). 200

The Dublin Statement on Water and Sustainable Development (n 57). 201

Ibid. Principle 4. 202

United Nations International Conference on Population and Development, Cairo, Egypt, September 1994.

Available at <http://www.un.org/popin/icpd2.htm> (Last accessed 27 July 2016).

55

The 2002 World Summit on Sustainable Development resolved ‘to speedily increase access to

basic requirements such as clean water, sanitation, energy, healthcare, food security and the

protection of biodiversity.’203

Perhaps unsurprisingly for a sustainable development declaration,

this list connects provision of essential material requirements alongside protection of the

environment. Such an example of locating the human right to water within an integrated

context, which emphasises social, economic and environmental concerns simultaneously, hints

at the ensuing discussion towards the end of this chapter around social-ecological security; in

particular the need to frame questions of sustainable access to sufficient water within the

limitations of emerging ecological capacities.

The CESCR General Comment 15 was also published in 2002. As discussed above, this

authoritative interpretation of the ICESCR as including a human right to water is not legally

binding on States parties, and is therefore justiciably problematic. But the importance of its

substantive content, and its normative status should not be underestimated.204

During the same period, such activity around recognition and definition of the right to water at

the international level was mirrored by equally important domestic events, which while

nationally-specific, have had international ramifications in relation to achieving acknowledgment

of a human right to water.

2.2.5 The Cochabamba movement

The events that catalysed the Cochabamba water war have been introduced above at 1.5.6. The

legacy of these events will be considered here. But first an earlier case from Argentina,

regarding similar contractual arrangements, serves as a useful point of departure for

understanding the Cochabamba movement.

The case of Compania de Aguas de Aconquija (AdA) v Argentine Republic,205

involved a 30-

year water service contract signed in 1993 between AdA (Vivendi Universal) a French

multinational water services company, and Tucuman province, Argentina.206

The water service

contract contained no provisions to ensure stability of water prices and water quality. Prices

203

The Johannesburg Declaration on Sustainable Development, 4 September 2002. Available at

<http://www.johannesburgsummit.org/html/documents/summit_docs/1009wssd_pol_declaration.htm> (Last


General Comment 15 has been cited as authority in various domestic cases, as well as in General Resolution

64/292. See Lindiwe Mazibuko and Others v The City of Johannesburg and Others 2008; Perumatty Grama

Panchayat v State of Kerala, 16 December 2003. 205

ICSID Case No. ARB/97/3. 206


Bolivia’ (2003) Latin American Perspectives 14-36.

56

subsequently rose, and there were two specific incidents that gave rise to allegations of poor

water quality. As a result, in 1996 the Provincial government attempted to renegotiate the

contract with the intention of securing reduced water prices and more acceptable water quality

for its residents. The renegotiation failed, resulting in repudiation of the contract by AdA along

with a claim for US$300 million in damages.

The contract stipulated that litigation was subject to the jurisdiction of the local Tucuman

Court. However, the relevant French-Argentinian Bilateral Investment Treaty directed that

jurisdiction lay with the International Centre for the Settlement of Investment Disputes

(ICSID). This was confirmed by ICSID arbitrators, and the case was duly heard at the ICSID.

AdA’s claim for damages was awarded.

Despite the obvious due diligence failings of Tucuman Province regarding securing minimum

safeguards during contractual negotiations, the case decision was seen as a victory for corporate

capital and a reassurance to private water service providers that their interests were well

protected. Considering this case in relation to the water paradigms introduced in Chapter One,

this is one of the earliest examples of contemporary large-scale water privatization within a

‘water as commodity’ paradigm. Not only does the case exemplify the growing interest and

involvement of the private sector in providing water services during the 1990s, the jurisdictional

question raised in the case is also illustrative of a systemic shift in power during this time, from

the State (most obviously from the sovereignty of developing States) to the Corporation; a well

documented characteristic of neo-liberal globalisation.207

So when a similar privatization contract was signed in Cochabamba, Bolivia in 1999, and

subsequently cancelled, the water service provider Aguas del Tunari also sought to enforce the

contract through the ICSID, claiming between US$25 and US$100 million in damages. But

unlike in the previous case, the Bolivian government withdrew from the ICSID in response to

overwhelming domestic pressure, including civil unrest, which claimed two lives. As a result of

withdrawal from the ICSID, local jurisdiction over the dispute was reasserted. Eventually Aguas

del Tunari was forced to agree to an out of court settlement for a symbolic payment of 2

bolivianos (Bolivia’s national currency).208

207

T Evans The Politics of Human Rights, A Global Perspective (2nd

ed, Pluto Press, 2005) at 104; See also J A

Scholte ‘What is Globalization? The definitional issue – again’ Centre for the Study of Globalisation and

Regionalisation (2002) 109/02, 15. 208


Bolivia’ (2003) Latin American Perspectives 14-36, 30.

57

It would be a mistake to assume that this second case simply represents an isolated reversal of

the State-Corporation power shift, and a return to the status quo of publically-owned water

services. The Bolivian State (at civic and national levels) had facilitated and supported the

privatization of Cochabamba water, and had defended the privatization contract throughout

months of public protest: only making legislative changes to rescind the contract when local,

national and international pressure threatened to topple the government.209

Rather, the

sustained and organized opposition to the Aguas del Tunari contract came primarily from a

broad, grass-roots coalition, which transcended, and to a large extent marginalized, the trade

unions movement as the traditional site of protest. This coalition, the Coordinadora in Defence

of Water and Life, proved able to mobilize quickly and to sustain its protest presence for a long

period of time, while articulating a coherent and extremely popular message, ‘the right to water

for life’; that water must be available for everyone, and that governance of water services must

be such that this is fulfilled.210

Furthermore, as this ‘local’ conflict around water drew popular

and intellectual attention, it began to be framed within narratives of inequality and

disenfranchisement, environmental (in)justice and sustainability, at both the local and the global

scale.211

Indeed, the influence and leadership of the Coodinadora proved to be so strong that when

control of water services was finally returned to the State-owned company Semapa, several

Coodinadora representatives were appointed to its Board, charged with seeking to ensure that

there would be no return to either the corruption and inefficiencies of the original Semapa, or

of privatesque modes of water service delivery that ‘would prioritize profitability over the needs

of the population’.212

Returning again to the water paradigms introduced in Chapter One, the Coodinadora’s mantra

‘the right to water for life’ clearly resonates with a water-as-necessity paradigm. But the events of

Cochabamba and the strategies employed in removing and replacing Aguas del Tunari have

followed the imperative that water is a necessity, and sought to realize this through a water-as-

commons paradigm, which forges strong practical and epistemological links between water and

the wider environment, and between the local and the global contexts. Consequently the

particular call for water justice in Cochabamba, became a common call, echoing wider calls for

209

Ibid. 210

L Mehta et al ‘Global environmental justice and the right to water: the case of peri-urban Cochabamba and

Delhi.’ (2014) 54 Geoforum 158-166, 161. 211

Ibid at 159. 212


Bolivia’ (2003) Latin American Perspectives 14-36, 33.

58

global justice (including global environmental justice213

). Indeed this connection between the

events in Cochabamba and global environmental justice was symbolically cemented when the

city of Cochabamba was chosen to host the World People’s Conference on Climate Change in

April 2010214

, three months before General Assembly resolution 64/292 was adopted. This

conference attracted global attention as a showcase for the role of civil society in pursuing

environmental justice. It was also seen as a response to what many saw as the failures of the

COP15 climate meetings in Copenhagen the previous year.215

In July 2010 General Assembly resolution 64/292 on the right to water and sanitation was

sponsored by Bolivia and introduced by the Pablo Solon, Bolivian Ambassador to the UN,

who directly connected the proposed resolution to the legacy and lessons of the Cochabamba

water war in 2000. Referencing the Coodinadora’s rallying cry, he declared ‘water is life’.216

The

corresponding Human Rights Council resolution 15/9 was also introduced by the Bolivian

Ambassador.

Of course it is not claimed that the historical origins of the recognition of water rights began at

Cochabamba. Indeed water rights have been recognized in various forms for millennia.217

Water

governance at the international level has long since acknowledged an interconnected

relationship between water rights and broader social, economic and environmental issues, as

shown in the foregoing attempt to identify a human right to water in international law. But any

attempt to understand the evolution and crystallisation of a human right to water in

international law must acknowledge the part that the Cochabamba movement has played in

helping to focus attention and support for an explicitly stated general human right to water,

declared at the international level. No less important a part of the legacy of Cochabamba may

213

The term ‘global environmental justice’ is becoming popular. But its exact meaning is not entirely clear.

Schlosberg attempts a definition as follows: ‘justice demanded by global environmental justice is really threefold:

equity in the distribution of environmental risk, recognition of the diversity of the participants and experiences in

affected communities, and participation in the political processes which create and manage environmental policy.

The existence of three different notions of justice in the movement, simultaneously, demonstrates the plausibility

of a plural yet unified theory and practice of justice’. See D Schlosberg ‘Reconceiving Environmental Justice:

Global Movements and Political Theories’ (2004) 13/3 Environmental Politics 517. 214

The conference published ‘The People’s Agreement’. Available at <https://pwccc.wordpress.com/support/>


15th

United Nations Conference of the Parties, Copenhagen, December 2009. See J Vidal et al ‘Low targets,

goals dropped: Copenhagen ends in failure’ (19 December 2009) The Guardian. Available at <

http://www.theguardian.com/environment/2009/dec/18/copenhagen-deal> (Last accessed 27 July 2016). 216

M Barlow Our Right to Water: A People’s Guide to Implementing the United Nations’ Recognition of the Right

to Water and Sanitation. Available at: <http://documents.foodandwaterwatch.org/doc/RTW-

Cdn.pdf#_1.195890220.1020496576.1429985769> (Last accessed 27 July 2016). 217

For reference to the history of water rights on the African continent see generally R Ross A Concise History of

South Africa (Cambridge University Press, 1999); D D Tewari ‘A detailed analysis of evolution of water rights in

South Africa: an account of three and a half centuries from 1652 AD to present’ Water SA (2009) 35/5, 693-710.

59

be its role in galvanising ‘water-as-commons’ global and local movements. The ramifications of

this paradigm in relation to a right to water are considered in more detail in Chapter Five.

2.3 The content of the human right to water

In charting the development of the human right to water it is clear that there is considerable

international consensus around the existence of the right, despite the fact that it lacks some of

the attributes typically expected of internationally recognised human rights (including explicit

enunciation in a legally binding and general convention). The absence from the International

Bill of Human Rights of a legally-binding human right to water has meant that General

Comment 15 has come to play a particularly important part in stating the nature and scope of

this right. As McCaffrey observes, General Comment 15 ‘is the first recognition by a United

Nations human rights body of an independent and generally applicable human right to water’.218

In addition to its normative importance, and its role in focusing international opinion towards

the issue of water as a human right, General Comment 15 provides the most authoritative and

detailed commentary to-date on the substantive content of the right to water, and the

corresponding standards of action and response that States Party to the ICESCR are expected

to meet.219

Consequently, since it was published in 2002, General Comment 15 has had clear

potential to effect national law in respective States. Such an effect on South African water law is

explored further in Chapter Three. The substantive content that General Comment 15

provides is now considered in detail, followed by the corresponding obligations of States

parties.

2.3.1 Constitutive elements of the human right to water

As discussed above, the primary basis on which a human right to water is asserted in General

Comment 15, is that such a right is derived from, and is required for the rights to an adequate

standard of living (that is for dignified life), and to the highest attainable standard of health

(Articles 11 and 12 ICESCR). Therefore the elements that constitute the human right to water

must be sufficient to meet these requirements of dignified life and health.220

Paragraph 2

218

S McCaffrey ‘The Human Right to Water’ in E Brown Weiss et al (eds) Fresh Water and International

Economic Law (Oxford University Press, 2005) 93, 101. 219

See variously E B Bluemel ‘The Implications of Formulating a Human Right to Water’ (2004) 31 Ecology Law

Quarterly 957, 972; M Langford ‘Ambition That Overleaps Itself-A Response to Stephan Tully's Critique of the

General Comment on the Right to Water’ (2006) 24 Netherlands Quarterly of Human Rights 433, 448-9; M

Williams ‘Privatization and the Human Right to Water: Challenges for the New Century’ (2007) 28 Michigan

Journal of International Law 469, 475.

220

See General Comment 15, Paragraph 11, also ICESCR, preamble and Articles 11 and 12.

60

describes the human right to water as entitling, ‘everyone to sufficient, safe, acceptable,

physically accessible and affordable water for personal and domestic uses.’221

This identifies five

elements of the right to water. These are further elaborated on in Paragraph 12 under three

sub-headings of availability, quality, and accessibility:

‘(a) Availability. The water supply for each person must be sufficient and

continuous for personal and domestic uses. These uses ordinarily include drinking,

personal sanitation, washing of clothes, food preparation, personal and household

hygiene…’

Furthermore, the quantity of water available for each person should take into account different

conditions relating to health, climate, and work. But availability should correspond to World

Health Organization (WHO) guidelines, which state between 20 and 40 litres per person per

day (lpd).222

(b) Quality. The water required for each personal or domestic use must be safe, therefore free

from micro-organisms, chemical substances and radiological hazards that constitute a threat to a

person’s health. Furthermore, water should be of an acceptable colour, odour and taste for each

personal or domestic use.

Arguably the requirements around acceptability (one of the five elements identified above at

paragraph 2) transcend minimal considerations around health and life, to reflect the need for

water to support dignified life. A water supply of dubious colour, odour or taste, may

nevertheless pose no harm to health. Here, the General Comment can be seen as pushing

beyond a de minimus definition of adequate water, as that which sustains existence; towards a

fuller definition, as that which sustains dignified life. As discussed in Chapter One, the high

standard that this definition requires affirms a paradigmatic understanding of water as being

necessary for dignified life, beyond mere existence. It is also of importance in determining

States’ obligations.

(c) Accessibility. Water and water facilities and services have to be accessible to everyone

without discrimination, within the jurisdiction of the State party.

Accessibility is further defined as relating to four overlapping dimensions. Physical accessibility

requires amongst other things, that adequate water facilities ‘are within safe physical reach for all

221

General Comment 15, Paragraph 2 (emphasis added). 222

See P H Gleick ‘Basic water requirements for human activities: meeting basic needs’ (1996) 21/2 Water

International 83, 88; P H Gleick “The Human Right to Water’ (1998) 1 Water Policy 496.

61

sections of the population… within, or in the immediate vicinity, of each household, educational

institution and workplace’223

. Water is also required to be economically accessible for everyone,

meaning that the ‘direct and indirect costs and charges associated with securing water must be

affordable, and must not compromise or threaten the realization of other Covenant rights’.224

Additionally, water access must be non-discriminatory; accessible to all including the most

marginalised.225

This requirement of non-discrimination extends to access to information about

water issues.226

Requiring that water is physically and economically accessible is crucial to addressing some of

the most pressing challenges to adequate water that people in the developing world face;

particularly regarding affordability (and, often contingent to this, private sector involvement).227

My own empirical work in Malawi and South Africa illustrates some people’s experience of

economically inaccessible water, including the particular sadness when improvements in

physical accessibility are undone by economic constraints. The following is an extract from an

interview I conducted (NC) with ‘Jennifer’ (J), an assistant at the Soche Water Users’

Association, and ‘Andrew’ (A) a representative from the NGO Water for People, in Blantyre,

Malawi:228

NC: So what do you charge for water, how much is the water per litre or 20 litres?

J: The tariff? 20 litres is 12 kwacha [£0.015]229

, 40 litres is 24, and 60 litres is 36 kwacha, and

that’s our tariff

NC: Do you ever have any problems with people not being able to pay?

J: Yeah, we do have problems like when people steal the pipes.

A: In terms of payment, do you have households that fail to pay the 12 kwacha? And if you

have, what do you do?

J: I feel like our tariff is better for everyone, 12 kwacha.

NC: It’s low enough, it’s a small enough amount?

J: Yeah, compared to other private owners, our tariffs work the same, but they have higher

tariffs than us, so we feel we are giving them better.

A: Do you have people that collect water from the kiosks but they don’t have money?

223

General Comment 15, Paragraph 12 (c) (i). 224

General Comment 15, Paragraph 12 (c) (ii). 225

General Comment 15, Paragraph 12 (c) (iii). 226

General Comment 15, Paragraph 12 (c) (iv). 227

P Thielbörger The right (s) to water (European University Institute, 2010) 3. 228

Interview # 2. See appendices. 229

Currency conversion at <http://www.xe.com/currencyconverter> (last accessed 27 July 2016).

62

J: We can’t manage to - the other people, they do - run away from our kiosks and go to bore

holes, there are bore holes in some regions - they pay 100 kwacha and draw out for the whole

month.

NC: Sorry what do they do, they pay at the bore hole?

J: Yeah.

A: They bore holes with hand pumps, they pay once for a month, they go to that side and pay a

hundred kwacha, so they can draw the whole month, go to a kiosk where they pay per fetch.

NC: The water quality, is it different?

A: Very different.

NC: What are the problems with the water from the bore hole?

J: The problem, they are not treating it.

NC: Do you actually see people in the community getting sick?

J: Yeah, they do get sick because this borehole water is from - here it’s an urban area and they

[word indecipherable on Dictaphone]. So it’s easier to use the water in the ground, so they can

easily contract diseases because it’s not treated.

Clearly, despite the unit price for water from the Water Users’ Association being less than that

charged elsewhere by private providers, even this cost proves sufficiently prohibitive for some

people, who instead risk their health for cheaper, untreated water. This link between

inadequate water and health is particularly important to note. Not only does it affirm the

rationale offered in General Comment 15 for recognising a right to water as derived from

ICESCR Article 12, but the lack of (economically) accessible water also compromises the

realization of other Covenant rights.230

This supports an understanding of the right to water as

both deriving from, and necessary for, fulfilling ICESCR Articles 11 and 12.

A second, brief extract relates the experience of ‘Nombuso Khumalo’ in Burlington on the

outskirts of Durban, South Africa, whose piped water supply was forcibly disconnected due to

several months of arrears. Since 1994 Nombuso had witnessed the arrival of piped water to

every dwelling in her part of the settlement, including a tap installed to her wall, representing a

significant improvement in her experience of access to water, until the disconnection:

‘We get water from a standpipe here. I used to get it to my house, but they [Durban

Municipality] sawed it off… [now] I have to make two journeys if I want two buckets [20 litres

each] and there are others waiting.’231

230

Contrary to General Comment 15, Paragraph 12 (c) (i). 231


63

In relation to the ICESCR and General Comment 15, Nombuso’s experience can be

interpreted as a regression in the realisation of her right to water, as required to be

(economically) accessible. Although it is not certain whether Nombuso’s access to water after

disconnection would still fulfil the requirements in Paragraph 12 above, it nevertheless

represents one small example of a movement in the opposite direction to the clear obligation of

States parties to achieve ‘progressively the full realization of the rights’ in the Covenant.232

It

would also seem contrary to the obligation of States parties in the General Comment, to ‘move

as expediously and effectively as possible towards the full realization of the right to water’. A

forward (progressive) movement is clearly implied in both Article 2 and the General Comment.

This is supported by the ‘strong presumption that retrogressive measures taken in relation to

the right to water are prohibited under the Covenant’.233

States parties’ obligations are now

considered in the context of the right as a whole.

2.3.2 States Parties’ obligations

Part II of General Comment 15 begins as follows:

‘The right to water contains both freedoms and entitlements. The freedoms include the right to

maintain access to existing water supplies necessary for the right to water, and the right to be

free from interference, such as the right to be free from arbitrary disconnections or the

contamination of water supplies. By contrast, the entitlements include the right to a system of

water supply and management that provides equality of opportunity for people to enjoy the right

to water.’234

Such freedoms and entitlements reflect the negative and positive obligations on States within a

tripartite approach to human rights; to respect, protect and fulfil (as introduced above at 2.2.3).

Here the freedoms defined above require States to respect this aspect of the right to water,

imposing a mainly negative obligation on the State. If the maintenance of these freedoms

requires active protection, then there would also be a positive element to the States’ obligation.

While the above entitlements correspond to the obligation to fulfil, this can be characterised as

a positive obligation. Indeed this tripartite approach is explicitly adopted in the General

232

ICESCR, Article 2 (emphasis added). 233

General Comment 15, Paragraph 19. See also General Comment No. 3 The nature of states’ parties obligations

(1990) U.N. Doc. E/1991/23, paragraph 9. Available at:

<https://www1.umn.edu/humanrts/gencomm/epcomm3.htm> (last accessed 27 July 2016). 234

General Comment 15, Paragraph 10.

64

Comment where States parties’ obligations are listed respectively as, obligations to respect,

obligations to protect, and obligations to fulfil.235

Of particular note here, not least because of the largely positive responses that they entail, are

the obligations to fulfil in paragraphs 25 to 29. These include taking steps to ensure appropriate

education around hygienic and sustainable water use;236

according sufficient recognition of the

human right to water ‘within the national political and legal systems’;237

adopting a national water

strategy; and ensuring that water is affordable for everyone.238

This obligation of affordability

requires that ‘payment for water services has to be based on the principle of equity, ensuring

that these services, whether privately or publically provided, are affordable for all, including

socially deprived groups.’239

A clear imperative towards ensuring sustainable access to water is required in paragraph 28.

This sets out obligations to fulfil, including the adoption of ‘comprehensive and integrated

strategies and programmes to ensure sufficient and safe water for present and future

generations.’240

Such obligations are explicitly connected to the Agenda 21241

non-binding action

plan for sustainable development, and the World Summit on Sustainable Development

implementation plan.242

In making these connections, General Comment 15 has located the

right to water within the broader contexts of sustainable development243

and environmental

protection. Doubtless, access to sufficient water is essential for human development; as is an

understanding of water as an integral part of an interconnected biosphere.244

Therefore both of

these connections are natural. They are also crucial to situating the human right to water within

an integrated ecology. Both of these connections are considered in more detail below.

235

General Comment 15, Part III. 236

General Comment 15, Paragraphs 26. 237

General Comment 15, Paragraphs 26. Note Sufficient national recognition of the right to water should

preferably be achieved by legislative means. 238

General Comment 15, Paragraphs 26 and 27. Note Affordable water is to be ensured by inter alia appropriate

technologies, pricing policies and income supplements. 239



United Nations Conference on Environment and Development, Rio de Janerio, Brazil, 3 -14 June 1992, Agenda

21. Available at <https://sustainabledevelopment.un.org/content/documents/Agenda21.pdf> (last accessed 27 July

2016). See in particular chapters 5, 7 and 18. 242

Plan of Implementation of the World Summit on Sustainable Development, 4 September 2002. Available at

<http://www.un-documents.net/jburgpln.htm> (last accessed 27 July 2016). 243

M Fitzmaurice Contemporary Issues in International Environmental Law (2009, Edward Elgar) 66: ‘the true

nature of [sustainable development] remains mysterious and elusive despite its wide use (or perhaps overuse).’ 244

See: The Nine Planetary Boundaries – Stockholm Resilience Centre:

<http://www.stockholmresilience.org/research/planetary-boundaries/planetary-boundaries/about-the-research/the-

nine-planetary-boundaries.html> (Last accessed 27 July 2016).

65

International obligations within General Comment 15 reiterate States parties’ obligations under

the ICESCR regarding international co-operation and assistance towards the full realisation of

the right to water. Examples of this include the ‘provision of water resources, financial and

technical assistance… disaster relief and emergency assistance’.245

So-called ‘core obligations’,

which require immediate fulfilment, have been considered previously at 2.2.2 in relation to the

exception that these obligations represent, compared to the general Covenant requirements of

progressive realisation.

Part IV of the General Comment sets out actions and omissions which amount to a violation of

the right to water. This identification of violations is a consequence of applying the normative

content of the right, to the obligations of States parties (as paragraph 39 explains). Consequently

violations can occur through acts of omission, corresponding to a failure to realise ‘positive’

obligations to protect and/or fulfil. Violations can also occur through acts of commission, which

are contrary to the ‘negative’ obligation to respect. For instance, adoption of retrogressive

measures incompatible with the right to water, arbitrary or unjustified disconnection, pollution

or diminution of water resources may also count as violations by commission.246

Distinction is

made between violations caused by a State party’s inability to act, as opposed to unwillingness.

A State unwilling to take the necessary steps, to the maximum of its resources, in relation to the

right to water will be in violation.

Regarding implementation at the national level, Part V of General Comment 15 requires that

‘[e]xisting legislation, strategies and policies should be reviewed to ensure that they are

compatible with obligations arising from the right to water, and should be repealed, amended

or changed if inconsistent with Covenant requirements’,247

before providing detailed guidance

on what a national strategy or plan of action should contain,248

including indicators and

benchmarks to assist in monitoring of the realization of the right to water.249

Of particular note

in relation to this thesis is the requirement for individuals ‘to participate in decision-making

processes that may affect their exercise of the right to water’250

and to ‘be given full and equal

access to information’.251

245

General Comment 15, Paragraphs 30-36. 246

General Comment 15, Paragraphs 42 and 44. 247

General Comment 15, Paragraph 46. 248




Ibid.

66

The emphasis on equity, inclusion, access to information, and international co-operation, along

with overt connections with environmental and developmental discourses, serves to locate

General Comment 15 as operating within the mode of (global) governance, as opposed to as a

hierarchical, binding, discrete instrument of regulation.252

Its authoritative, but non-binding

status complements such a reading. Indeed it has been suggested that the human right to water

itself can be best understood as an expression of universally accepted standards of global

governance.253

While this may detract to some extent from the bold normative claims of the

human right to water (potentially diminishing its quasi legally binding status as a derivative right

of the ICESCR) it may also address some of the difficulties which such an atypical right must

confront, regarding its precise legal status under international law. It may also encourage

enforcement of the right to be pursued by additional or alternative means than the traditional

enforcement mechanisms which currently exist under human rights law, for which the right to

water is not a good fit.254

Certainly, approaching the right to water from the viewpoint of

governance encourages wider consideration of water in relation to development,255

and as a

development goal at the international level.

2.4 The right to water at a regional level

Focusing on the geographical and geo-political region in which South Africa is located, several

regional human rights instruments are relevant to a rights-based approach to achieving access to

sufficient water. However, echoing the international situation, there is no single, universal,

binding right to water in the African Human Rights canon. The African Charter on Human and

People’s Rights (ACHPR)256

reiterates States Parties’ obligations under the UN Charter and

UDHR, but goes further, to state that satisfaction of economic, social and cultural rights is an

essential prerequisite for the enjoyment of civil and political rights.257

Article 1 states that parties shall undertake to adopt legislation or other measures to give effect

to the duties and freedoms enshrined in the Charter. This has been interpreted to include an

obligation to protect against violations, even if the State or its agents are not the immediate

252

L J Kotze Global Environmental Governance: Law and Regulation for the 21st

Century (Edward Elgar 2012) 51-

53. See also Chapter One 1.1 definitions. 253

H Grimes ‘Responding to the “Water Crisis”: The Complementary Roles of Water Governance and the

Human Right to Water’ (2009) 20 2/3 Water Law 119. 254

Ibid. 255

Ibid. 256

African (Banjul) Charter on Human and Peoples’ Rights (Adopted 27 June 1981, OAU Doc. CAB/LEG/67/3

rev. 5, 21 I.L.M. 58 (1982), entered into force 21 October 1986). Hereafter ACHPR.

257

ACHPR, Preamble.

67

cause of the violation.258

Here again the combination of negative and positive obligations is

present: The State is charged not to interfere with Convention rights, as well as being required

to positively protect rights through relevant and robust national law (or other measures). Failure

to fulfill positive obligations can arise in two ways: Firstly where the State fails to take action to

ensure respect for the relevant rights: Secondly where the State fails to protect an individual

from interference by other individuals, groups or corporations.

For example, in the case of SERAC v Nigeria259

the complainants brought an action against the

Nigerian government regarding the violation of various economic and social rights committed

by the National Nigerian Petroleum Company in partnership with Shell Petroleum

Development Corporation. The African Commission found the Nigerian government guilty of

violations of amongst others, the right to health and to a clean environment, due to its role in

facilitating and condoning the oil corporations’ operations, finding that the Nigerian State was

obliged ‘to protect right-holders against other subjects by legislation and provision of effective

remedies’.260

This position echoes General Comment No.31 of the Human Rights Committee, on Article 2

of the ICCPR, which makes clear States’ obligations to protect individuals ‘not just against

violations of Covenant rights by [state] actors, but also against acts committed by private persons

or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to

application between private persons or entities’261

. It should be noted however, that the

Committee has not gone so far as to say that, in the absence of effective action by the State, a

direct obligation is imposed on private actors to abide by Covenant rights.262

Indeed, such a

move would represent a major change to international human rights law in general. But the

relevance of this to realising access to sufficient water as a human right is that the onus to

respect, protect and (progressively) fulfil such a right is placed principally and explicitly on the

State. Furthermore, whether water services are administered by the public sector, private

258

74/92. Commission Nationale des Droits de L’Homme et des Libertes v Chad, 9th

Annual Activity Report of the

ACHPR (1995-96); 4 IHRR 94 (1997). 259

55/96, SERAC and CESR v Nigeria 15th

Annual Activity Report of the ACHPR (2002); 10 IHRR 282 (2003). 260

Ibid. Paragraph 46. 261

General Comment No. 31 on Article 2 of the Covenant: The Nature of the General Legal Obligation Imposed

on States Parties to the Covenant, adopted 29 Mar. 2004, Hum. Rts. Comm., 80th

Sess., 2187th

mtg., 8, U.N. Doc.

CCPR/C/74/CRP.4/Rev.6 (2004). 262

P Alston ‘Ships Passing in the Night: The Current State of the Human Rights and Development Debate Seen

Through the Lens of the Millennium Development Goals’ (2005) 27 Human Rights Quarterly 755, 770.

68

companies, charities or co-operatives, States are required to do their utmost to ensure against

human rights violations.263

Article 16(2) of the ACHPR proclaims that State parties to the Charter must take the necessary

measures to protect the health of their people. Access to water is not explicitly mentioned. But

following the jurisprudence of the CESCR, in their interpretation of ICESCR Article 12, it

would be a compelling argument that such an obligation to protect the health and environment

of its citizens would require States parties to ensure their citizens enjoy basic water and

sanitation services.

Indeed, the African Commission on Human and Peoples’ Rights has previously found that

rights to food, housing, water, electricity and medicine can be derived from the right to health

and other ACHPR rights.264

In Free Legal Assistance Group, Lawyers’ Committee for Human

Rights, Union Interafricaine des Droits de l’Homme, Les Témoins de Jehova v Zaïre,265

the

commission held that

‘the failure of the government to provide basic services such as safe drinking water and electricity,

and the shortage of medicine constitutes a violation of Article 16.’

While a welcome and predictable interpretation, determining the human right to water as

derivative, in the same way as General Comment 15, this does little for the justicability of the

right. Also, it must be noted that the decisions of the African Commission on Human and

Peoples’ Rights are non-binding. For this reason the African Court on Human and Peoples’

Rights was established, giving its first judgment in 2009. However, most of the cases heard so far

have been administrative, and it remains beset by problems.

In the same way as CEDAW and CRC discussed above, the following group-specific

instruments acknowledge a right to water for children and women respectively. Article 14(1) of

the African Charter on the Rights and Welfare of the Child266

provides that every child has the

right ‘to enjoy the best attainable state of physical, mental and spiritual health’. Article 14(2)(c)

explicitly stipulates that:

263

Ibid. 264

Free Legal Assistance Group v Zaïre ACHPR Comm No 25/89, 47/90, 56/91, 100/93 (1995) Communication

155/96, SERAC and CESR v Nigeria ACHPR Comm No 155/96, 15th Annual Activity Report. 265

Ibid.

266

African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), entered into

force Nov. 29, 1999: < http://www.au.int/en/treaties/african-charter-rights-and-welfare-child > (Last accessed 27 July

2016).

69

State parties… shall undertake to pursue the full implementation of this right and in particular

shall take measures to ensure the provision of adequate nutrition and safe drinking water.

Article 15 of the Protocol to the African Charter on the Rights of Women in Africa267

states that

State parties shall ensure that women have the right to nutritious and adequate food. In this

regard, they shall take appropriate measures to ‘provide women with access to clean drinking

water, sources of domestic fuel, land, and the means of producing nutritious food’.268

While the normative and declarative importance of these regional instruments regarding

affirming access to water as a necessity (and to some extent a human right) should not be

underestimated, the fact remains that at the regional level, as at the international level, a clear,

binding human right to water remains elusive.

2.5 Water as a development goal

The foregoing discussion has concentrated on the nature, content and scope of the human right

to water. Here the focus shifts to consider water in relation to development, both as a

prerequisite for development, and as a specific development goal. Beneath the ‘umbrella’ term

of water governance (defined above at 1.1) this analysis of the relationship between water and

development, relates in the main, to non-binding, or soft-law instruments, in contrast to the

ICESCR and ICCPR. Consequently, while law continues to play a part in understanding this

area of water governance, there will be less discussion of ‘hard’ law. But first a definition of

development is required. The UN General Assembly Resolution on the Right to Development

defined development as follows:

‘Recognizing that development is a comprehensive economic, social, cultural and political

process, which aims at the constant improvement of the well-being of the entire population and

of all individuals on the basis of their active, free and meaningful participation in development

and in the fair distribution of benefits resulting therefrom’.269

267

Protocol to the African Charter on the Rights of Women in Africa, Adopted by the 2nd

Ordinary Session of the

Assembly of the Union Maputo, 11 July 2003: <http://www.achpr.org/instruments/women-protocol/> (Last


Ibid. Article 15. 269

United Nations General Assembly resolution 41/128 “Declaration on the Right to Development”, UN Doc.

A/RES/41/128 (4 December 1986). Hereafter UN GA resolution 41/128. Preamble.

70

In light of this comprehensive,270

inclusive271

and equitable272

definition of what development

means, the Resolution goes on to declare that a right to development is:

‘an inalienable human right by virtue of which every human person and all peoples are entitled

to participate in, contribute to, and enjoy economic, social, cultural and political development,

in which all human rights and fundamental freedoms can be fully realized.’273

Furthermore, ‘States have the primary responsibility for the creation of national and

international conditions favourable to the realization of the right to development.’274

Despite being framed as a human right, the legal status of this right to development is the same

as that of Resolution 64/292 on the human right to water. Both are General Assembly

resolutions, which are not legally binding on States. However, what is more important regarding

the relationship between water and development is the way in which the ‘right to development’

(or perhaps more accurately, the impetus for development) has been pursued through non-

binding, but extremely high profile development goals.

2.5.1 Water and the Millennium Development Goals

In September 2000, world leaders came together to adopt the United Nations Millennium

Declaration, commiting their nations to a new global partnership for development; the

Millennium Development Goals (MDGs)275

. The MDGs are the most high profile initiative to

promote development and reduce poverty internationally. Their timetable for completion was

2015, and a final report, issued in July 2015, shows huge achievements in all target areas.276

Each

of the eight goals overlaps with human rights principles and generally the MDGs share focus

with the human rights agenda. However, connections or synergies with human rights are not

made explicit in the MDGs; a situation now famously described by Alston as ‘ships passing in

the night’.277

Consequently, analysis of the progress of the MDGs is not situated within a human

270

‘economic, social, cultural and political process’ 271

‘the well-being of the entire population’ 272

‘fair distribution of benefits’ 273

UN GA resolution 41/128, Article 1. 274

Ibid. Article 3. 275

Millennium Development Goals derive from the Millennium Declaration, adopted by the UN General

Assembly in 2000. Available at <http://www.un.org/millenniumgoals> (Last accessed 27 July 2016). Hereinafter

MDGs. 276

The Millennium Development Goals Report, 2015. Available at:

<http://www.un.org/millenniumgoals/2015_MDG_Report/pdf/MDG%202015%20rev%20(July%201).pdf> (Last



Through the Lens of the Millennium Development Goals’ (2005) 27 Human Rights Quarterly 755, 770.

http://www.un.org/millennium/declaration/ares552e.pdf

http://www.un.org/millennium/declaration/ares552e.pdf

71

rights framework.278

For instance the Global Monitoring Report 2014279

does not mention

human rights, instead focusing on specific MDGs targets. Lack of reference to human rights

within the MDGs framework has drawn some criticism. The failure to link congruous aims and

aspirations has perhaps denied the MDGs access to the vocabulary of rights with which to

strengthen their imperative for States to act, instead risking a ‘technocratic input/output

approach to development’.280

But despite lacking explicit connection to human rights (and to

human rights vocabulary), the MDGs were announced from their conception using the

language of human dignity and equality,281

which echoes that used in human rights

instruments.282

Also in light of their relative success, such criticisms are perhaps difficult to

sustain.

Regarding water, target 7.C required global action to halve, by 2015, the proportion of the

population without sustainable access to safe drinking water and basic sanitation. Of note here

is that this target is part of Goal number seven; ‘ensuring environmental sustainability’. In

contrast to much of the previous discussion around a human right to water at the international

level, here access to water as a development goal has been approached from within a broader

aim of environmental sustainability. Locating the challenge of access to water within this

broader goal affirms the natural and necessary connections between water and wider discourses

on environmental resilience and socio-ecological security (as discussed below).

Target 7. C was met in 2012, three years ahead of schedule, signaling a vast improvement in the

number of people accessing improved drinking water (from 2.3 billion in 1990 to 4.2 billion in

2015),283

and accessing improved sanitation (2.1 billion more people by 2015).284

While the

reality of these figures is that many millions of people still live without access to adequate water

or sanitation facilities, it nonetheless represents considerable and sustained development, which

to borrow from the human rights lexicon, could be described as an impressive global example

of progressive realization of the right to development (and of so many of the myriad economic,

social, cultural, civil and political rights that relate to the right to development, of which access

to sufficient water is clearly one).

278

Ibid at 780. 279

Global Monitoring Report 2014: Ending Poverty and Sharing Prosperity. Available at:

<http://www.worldbank.org/en/publication/global-monitoring-report> (last accessed 27 July 2016). 280


Through the Lens of the Millennium Development Goals’ (2005) 27 Human Rights Quarterly 755, 784. 281

Millennium Declaration, 2000, Part I Article 1. 282

See for example the preamble to the UDHR. 283

The Millennium Development Goals Report, 2015, 7. 284

Ibid.

72

Such achievements should signal a note of cautious optimism regarding the potential of the

newly agreed Sustainable Development Goals to help move the international community closer

to eradicating poverty and to realizing at least a minimum level of development for everyone.

As is discussed in Chapter Three, South Africa’s response to the MDGs has been positive, as

have the responses of other developing countries.285

It seems that effective governance at the

international level must not confine itself to the remit of human rights, but must also take

seriously the significant potential of globally agreed, publicized and monitored development

‘goals’. However, as Adelman reminds us, development discourse has been regarded with some

suspicion by many in the Global South, for whom development has become a ‘dirty word’,

synonymous with impoverishment, exploitation and pollution.286

2.5.2 Water and the Sustainable Development Goals

The recently adopted Global Goals for Sustainable Development (hereafter referred to as the

Sustainable Development Goals, or SDGs) mark a significant new chapter in the work of the

UN to eradicate poverty and champion development.287

Though broader in their scope, and

with more ambitious aims, the SDGs continue the model chosen for the Millennium

Development Goals (MDGs). They avoid creating direct legal obligations in favour of a ‘report

card’ approach to help monitor and improve the performance of the international community

regarding the targets set. While this approach aims to ensure the SDGs reach at least a similar

level of success as their predecessors, the emphasis on voluntary commitments rather than legal

obligations raises serious questions. Practical concerns regarding how to effectively implement

non-legally binding commitments join more normative questions about how the SDGs should

best be conceived of as a development framework. What role should law play? Is there a

sufficiently strong ethical imperative to ensure compliance? Does the ‘report card’ approach

signal a significant shift within the international policy community towards pursuing politically

ponderous but legally insubstantial ambitions? And with what consequences? Will human

rights find themselves marginalised by the SDGs, or re-energised by their universal aims, and

re-imagined beyond anthropocentricity by the Goals’ emphasis on interconnected

understandings of human and non-human life (goals 11-15). Is there a coherent conceptual

framework with which to understand and critique the SDGs? If not, what will hold the focus of

285

See MDG country reports: < http://www.undp.org/content/undp/en/home/librarypage/mdg/mdg-reports.html>


S Adelman ‘Between the Scylla of Sovereignty and the Charybdis of Human Rights: The Pitfall of Development

in pursuit of Justice’ (2008) 1 Human Rights & International Legal Discourse 17-18. 287

United Nations Resolution A/RES/70/1 of 25 September 2015. Available at:

<https://sustainabledevelopment.un.org/?menu=1300> (Last accessed 27 July 2016).

73

States and international organisations across 17 goals, 169 associated targets and 300 indicators

over 15 years of serious work? Less than a year into the allotted time span for the SDGs, the

answers to such questions cannot yet be clear. But, following on from the MDGs, the

international community’s embrace of the SDGs also, represents a 30 year commitment to

ambitious, measurable goals, which cannot be characterised as falling within the established

sources of international law.288

The MDG/SDG development agenda has not been expressed

through treaty-based, or customary law. Rather, it has taken the form of ‘soft’ standard setting,

which is becoming increasingly popular in international environmental law, and beyond.289

This

would seem to indicate a conscious shift in approach within the international community,

certainly compared to the era of the Covenants, and the Right to Development. But there is

also considerable synergy between the older rights-based and newer goals-based approaches to

development objectives (including access to sufficient water).

Regarding water specifically, SDG goal six aims to ‘ensure the availability and sustainable

management of water and sanitation for all’.290

Because of its universal aim, this goal is more

easily compatible with the human right to water, articulated in GC 15, than was its precursor in

the MDGs.291

As such, it points to the potential for greater complementarity between rights-

based and goals-based approaches to achieving access to sufficient water. Indeed it may be

profitable to focus less on distinguishing ‘hard’ and ‘soft’ law, or rights and goals, in favour of a

more pragmatic emphasis on problem solving, including through alternative standard-setting

modes and compliance mechanisms (as seen in the MDGs and SDGs).292

Seen from this

perspective, whether a given approach comes from an established source of ‘law’ may be

secondary. What matters is which approach is best suited to achieving the desired results in a

given context. Such pragmatism is increasingly evident in international environmental law, and

288

See: Statute of the International Court of Justice, Article 38: <http://www.icj-

cij.org/documents/?p1=4&p2=2#CHAPTER_II> (Last accessed 27 July 2016). 289

J Brunnee ‘The Sources of International Environmental Law: Interactional Law’ (International Law Reporter,

28 May 2016) <http://ilreports.blogspot.co.uk/2016/05/brunnee-sources-of-

international.html?utm_source=twitterfeed&utm_medium=twitter&utm_campaign=Feed:+blogspot/RfRRI+(Intern

ational+Law+Reporter)> (Last accessed 27 July 2016). 290

Goal 6: Sustainable Development Goals available at: <https://sustainabledevelopment.un.org/?menu=1300>


MDG 7.C: ‘to halve, by 2015, the proportion of the population without sustainable access to safe drinking water

and basic sanitation.’ The explicit aim of this target is to reduce, but not eradicate water poverty. As such, it is

difficult to read this as compatible with the corresponding human rights claims that everyone is entitled to access to

safe drinking water and basic sanitation. 292

For monitoring and reporting obligations see generally: S Suter & A Fishman ‘Lessons on Monitoring and

Reporting from the MDGs and Other Major Processes’ (2015) Independent Research Forum:

<http://www.irf2015.org/sites/default/files/publications/Retreat%20%237_SD-1_Final%20Draft.pdf> (Last accessed

27 July 2016); S Kindornay & S Twigg ‘Establishing a Workable Follow-up and Review Process for the Sustainable

Development Goals’ (2015) Overseas Development Institute Report:

<https://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/9588.pdf> (Last accessed 27 July

2016).

74

also seems fitting in relation to the pursuit of essential development objectives.293

2.5.3 Water and Sustainable Development

As has already been illustrated by reference to the MDGs (and the place of water within the

wider goal of ensuring environmental sustainability), and by the explicit connection drawn

between water and protection of biodiversity in the Johannesburg Declaration on Sustainable

Development,294

it is now broadly acknowledged that access to sufficient water must be achieved

in ways that are sustainable. This includes consideration of continued access for present and

future generations (intergenerational equity), as well as what is necessary to protect the

environment (sustainable use). This concern to ensure sustainable access to water is reiterated

in General Comment 15:

‘The manner of the realization of the right to water must also be sustainable, ensuring that the

right can be realized for present and future generations.’295

In short, water governance and sustainable development should go hand in hand. The term

‘sustainable development’ was first defined in the 1987 Brundtland Report as ‘development that

meets the needs of the present without compromising the ability of future generations to meet

their own needs’296

. But its origins in State practice date back much further, to at least 1893,

when the arbitral tribunal in the Pacific Fur Seal arbitration incorporated elements of what

would now be recognised as a sustainable development approach to natural resource use.297

The Brundtland Report definition contains elements of equitable use, including

intergenerational equity, and sustainable use; which expressed together integrates economic,

social and environmental considerations. These three elements (equity, sustainable use, and

integration) comprise the concept of sustainable development. Although its precise legal

definition and status remains unclear, most commentators agree that sustainable development is

293

J Brunnee ‘The Sources of International Environmental Law: Interactional Law’ (International Law Reporter,

28 May 2016) <http://ilreports.blogspot.co.uk/2016/05/brunnee-sources-of-

international.html?utm_source=twitterfeed&utm_medium=twitter&utm_campaign=Feed:+blogspot/RfRRI+(Intern

ational+Law+Reporter)> (Last accessed 27 July 2016). Note: A broader definition of ‘law’ also opens up space to

consider the role of ‘vernacular law’ in commons approaches to water governance, as will be discussed below in

Chapter Five. 294

‘Johannesburg Declaration on Sustainable Development’ UNGA A. Conf/199/20 September 2002 Annex at 18.

Available at: < http://www.un-documents.net/jburgdec.htm> (Last accessed 27 July 2016). 295


‘The Brundtland Report’, World Commission on Environment and Development (WCED) Our common

future (Oxford University Press, 1987) 43. 297

Pacific Fur Seal arbitration award, 15 August 1893, 1 Moore’s International Arbitration Awards 755. See P

Sands & J Peel Principles of International Environmental Law (3rd

ed, Cambridge University Press, 2012) 206 and

399.

75

a non-binding political leitmotif, and not an enforceable norm with jus cogens or customary

international law status.298

But applying these elements to the challenge of achieving access to water offers the potential to

integrate equitable social and economic development in environmentally sensitive and

sustainable ways. Triangulating access to water within social, economic and environmental

considerations offers a distinctive approach to water governance. But the lack of clarity

regarding each of the elements of sustainable development has led some to question how such

distinctiveness may provide a substantive means by which to progress the reform agenda which

surrounds it.299

Without such substance, sustainable development risks becoming a hollow

concept. Indeed, Fitzmaurice warns that ‘[t]he continuing reliance on clichéd and worn out

definitions should be abandoned and the concept (or principle) of sustainable development

must acquire a tangible and concrete content’.300

As an over-arching goal of the international community and an increasingly recognised (non-

binding) principle of international law, sustainable development is likely to continue to feature

in the rhetoric around transforming water governance towards greater equity and sustainability.

However, as the brief consideration of the concept and application of sustainable development

(above) suggests, too often aspirations towards sustainability are insufficiently developed or

robust to be operationalized or fulfilled. Worst still, without a serious and sustained challenge

to human behaviour, targeted at reducing consumption and ‘treading more lightly’, sustainable

development risks being an ‘ideological palliative’ that helps us ‘rationalize our continuing

encroachments upon the planet’.301

Therefore a further concept is introduced below; social-ecological security. While it shares with

sustainable development an emphasis on integrating economic, social and environmental

considerations, it does so against an augmented awareness of the interconnections between all

organisms and components in the (general or particular) ecosystem. It is to this heightened

298

U Beyerlin & T Marauhn International Environmental Law (Hart, 2011) 79. 299

N Cooper & D French “The Right to Water in South Africa: Constitutional Managerialism and a Call for

Pluralism” in E Blanco & J Razzaque (eds) Natural Resources and the Green Economy: Redefining the Challenges

for People, States and Corporations (2012, Martinus Nijhoff) 111 at 118. 300

M. Fitzmaurice, Contemporary Issues in International Environmental Law (Cheltenham, Edward Elgar, 2009)

108. 301

B Richardson ‘A Damp Squib: Environmental Law from a Human Evolutionary Perspective’ (2011) 7/3

Comparative Research in Law & Political Economy. Research Paper No.8/2011. 31.

76

perception of access to water for people, within the boundaries of a sustainable environment,

that the chapter now turns.

2.6 Effective international governance in the present and future global environmental contexts

As has become apparent from the foregoing analysis of relevant human rights and development

goals, progress in realizing access to sufficient water through either or both of these approaches

must proceed in ways that are sustainable and environmentally aware. Therefore it is no longer

possible (if it ever was) to pursue agendas of human rights and/or human development in

isolation from the realities of local, national, regional and international environmental

constraints. Effective water governance at the international level must include the integration

and contextualization of access to water challenges within wider ecological imperatives. Applied

to the specific focus of this thesis, access to sufficient water for everyone in South Africa can

only be achieved within the environmental constraints that the country faces.302

2.6.1 Social- ecological security and the exigencies of the Anthropocene

Social-ecological security (SES) is emerging in the literature as a concept that attempts to better

articulate the multifarious challenges to the security of the human (and non-human)

environment. In particular it emphasises that social and human security cannot be separated

from ecological security303

. It thus reflects a changing notion of security, towards a broader,

more interconnected and contingent understanding, better placed to problematize and address

the changing nature of ecological and developmental threats faced. Such threats have been

defined as:

‘an action or sequence of events that (1) threatens drastically and over a relatively brief span of

time to degrade the quality of life for the inhabitants of the Earth, or (2) threatens significantly to

narrow the range of policy choices available to the international community, governments of

states or to private, nongovernmental entities (persons, groups, corporations).’304

302

See generally: L J Kotze ‘Phiri, The Plight of the Poor and Perils of Climate Change’ (2010) 1/2 Journal of

Human Rights and the Environment 135-160. Note: These constraints do not neatly fall into categories like

‘national’ and ‘regional’. Rather, while the nation-state remains the principle unit of analysis within a Westphalian

legal/political system, and consequently South Africa is the particular nation-state within which the issue of access

to water is here scrutinised, the relevant environmental constraints that this country faces are an amalgam of local

(including micro-climates), national (including net rainfall), regional (including trans-boundary water sources) and

international (including climate change problems which demand global responses, regardless of whether particular

states are affected). 303

J Ebbesson ‘Social-ecological security and international law in the Anthropocene’ in J Ebbesson et al (eds)

International Law and Changing Perceptions of Security (Brill, 2014) 71, 77. 304

Ibid.

77

Applied to water, this means that not only must water services be ‘socio-sustainable’ (sustainable

from the perspective of human development). They must be ‘eco-socio-sustainable’ if such

services are to withstand the exigencies of planetary degradation.305

While traditionally threats to water, food, and energy security have been addressed in isolation,

SES offers not only a more holistic framework for understanding and responding to these

challenges, but also gains relevance when set against the backdrop of the Anthropocene. The

Anthropocene has been unofficially proposed as a new geological epoch.306

Formally still, the

Holocene remains the present epoch, as it has for 10-12000 years. It has been characterised in

the main by stable environmental conditions, which have supported the enormous growth of

the human population, and the development of modern societies. But the global human

imprint on the biosphere has become so significant that the Earth is moving into a critically

unstable and inharmonious state.307

It is asserted that humankind has played a central role in

moving the planet towards a critically unstable state, characterised by less predictable and less

harmonious Earth systems.308

So central is this role, that humanity can be considered a discrete

geological force capable of moving Earth systems outside their natural range of variability, and

into a new and unstable epoch.

The effects of the Anthropocene on water are not yet fully understood. But salination, drought

and heavy rainfall are all consequences of the less predictable weather patterns experienced

globally. Furthermore, so crucial is fresh water for life, that pressure on water supplies adversely

affects aspects of human life ranging from food security, sanitation, health and economic

development.309

Unsurprisingly SES and the Anthropocene are becoming part of the discourse around

environmental law and governance, 310

giving new impetus and urgency to principles including

305

Crutzen & Stoermer ‘The ‘Anthropocene’’ (2000) 41 IGBP Global Change Newsletter 17-18. 306

Ibid. 307

W Steffen, PJ Crutzen & JR McNeill "The Anthropocene: are humans now overwhelming the great forces of

nature." (2007) 36/8 AMBIO: A Journal of the Human Environment 614-621, 615

308

Ibid. 309

S Meisch ‘The need for a value-reflexive governance of water in the Anthropocene’ in A Bhaduri et al (eds) The

Global Water System in the Anthropocene (Springer International Publishing, 2014) 427-437, 427. 310

For a list of the more recent publications, see among others: K Rakhyun and K Bosselmann ‘International

Environmental Law in the Anthropocene: Towards a Purposive System of Multilateral Environmental

Agreements’ (2013) 2 Transnational Environmental Law 285-309; K Scott, ‘International Law in the

Anthropocene: Responding to the Geoengineering Challenge’ (2013) 34/2 Michigan Journal of International Law

309-358; N Robinson ‘Beyond Sustainability: Environmental Management for the Anthropocene Epoch’ (2012)

12/3 Journal of Public Affairs 181-194; L J Kotzé ‘Human Rights and the Environment in the Anthropocene’

(2014) The Anthropocene Review 1-24; L J Kotzé ‘Transboundary Environmental Governance of Biodiversity in

the Anthropocene’ in L J Kotzé and T Marauhn (eds), Transboundary Governance of Biodiversity (Brill 2014); L

78

sustainable development, while offering new perspectives with which to interrogate the juristic

interventions that must ultimately be better able to respond to the exigencies of the

Anthropocene, now and well into the future. Consequently discussion of water governance at

the international level must consider not only the existence and utility variously of a rights-based

approach, and a development-based approach to water; but also the emerging environmental

realities which relate to water, and the consequences for law and governance of seeking to

achieve sustainable, equitable, universal access to water on an unstable planet.

2.7 Chapter summary and concluding comments

As the forgoing discussion has shown, it is not easy to find a single independent, comprehensive

and legally-binding human right to water in international law. But it would be a mistake to

conclude from this that there is no human right to water. Instead, the human right to water

should be considered a unique right, which Thielbörger describes as:

‘a right of its very own kind that must be seen in connection with national guarantees… and with

other recognized human rights…’311

The human right to water can only be understood as a complex, multi-layered network of

international, regional and national law, treaties, ‘hard law’ and ‘soft law’312

. Such an analysis is

capable of affirming the continuing relevance of this right in international law; especially

regarding the setting of a substantive core to the right, including codifying minimum standards

and violations, as well as the independent monitoring of States’ progress. Of particular

importance on this point is the mandate of the UN Special Rapporteur on the Human Right to

J Kotzé ‘Rethinking Global Environmental Law and Governance in the Anthropocene’ (2014) 33/2 Journal of

Energy and Natural Resources Law 121-156; J Ebbesson, ‘Social-Ecological Security and International Law in the

Anthropocene’ in J Ebbesson et al (eds), International Law and Changing Perceptions of Security: Liber

Amicorum Said Mahmoudi (Brill 2014) 71-92; A Philippopoulos-Mihalopoulos, Spatial Justice: Body, Lawscape,

Atmosphere (Routledge 2014). 311

P Thielbörger The right(s) to water (European University Institute, 2010) at v. 312

The terms ‘hard law’ and ‘soft law’ receive useful definition in the following article, although it should be noted

that both terms remain inexact in their usage. Despite positivist’s eschewal of soft law as a concept (on the premise

that law, by definition, is binding), the principal distinction between hard law and soft law is that the former is

legally binding, while the latter is not. In relation to water governance, this distinction is a useful one, since while

numerous relevant sources can be identified, only some of these are binding in the strict sense. See GC Shaffer &

MA Pollack ‘Hard vs. Soft Law: Alternatives, Complements and Antagonists in International Governance’ (2010)

Minnesota Law Review 706-799, 712-13.

79

Water and Sanitation (currently held by Leo Heller).313

The extent to which the mandate is able

to effectively monitor and challenge rights violation remains to be seen.314

Complementing this analysis of the human right to water as atypical is the notable success of the

MDGs in delivering improved access to water. Despite the MDGs being a ‘non-legal’ vehicle

(in the sense that not only are they non-binding on States, but that they eschew even the

language of human rights), they have nevertheless driven efforts to make the content of the

human right to water a new reality for millions of people. Seen within a wider context of global

water governance, this is an important example of a human right finding (one) expression in a

non-human rights, (development goals-based) form.

There are doubtless important benefits for conceiving of access to water as a right within the

framework of human rights. As Winkler reminds us, these benefits ‘can all be linked to the fact

that human rights are legally-binding instruments’.315

It is for this reason that the human right to

water can be described as ‘reaching beyond and beneath’316

the MDGs. But considering the

challenge of access to water from the perspective of water governance at the international level,

as opposed to just the perspective of (binding) international law, it must be conceded that ‘soft’

development approaches like the MDGs and SDGs have a significant role to play in achieving

what should still be considered as the human right to water.

Also, without conflict or contradiction, such a multi-layered conception of the right to water is

able to acknowledge the crucial, central role of States in embodying the right through legislative

and other means (including embracing non-legislative measures) to pursue development goals.

Furthermore, such a multi-layered conception of the human right to water naturally leads to

consideration of the role that other layers of governance may have. Particularly relevant to this

thesis is the role of grass-roots, community or ‘commons’ expressions of governance, that, while

likely to be more ‘messy’ and more difficult to identify, than traditional sites of governance, are

replete with potential to close some of the gaps left by the transposition of a human right to

water into the national level (as explored in Chapters Four and Five). Indeed, as the history of

the emergence of an international human right to water clearly shows, such sub-national,

commons expressions of water governance have proved significant in achieving the high level of

313

See Human Rights Council Resolution 7/22 Human rights and the access to safe drinking water and sanitation,

adopted 28 March 2008. A/HRC/RES/7/22. Available at:

<http://ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_7_22.pdf> (last accessed 27 July 2016). 314

An overview of the mandate’s work is available at

<http://www2.ohchr.org/english/issues/water/iexpert/index.htm> (last accessed 27 July 2016). 315


(Hart, 2014) 214. 316

Ibid at 215.

80

consensus that now exists around a meaningful human right to water, as well as in challenging

inappropriate private sector involvement in water services.

The need to achieve access to sufficient water, whether pursued as a human right or a

development goal, has been clarified as the need to achieve sustainable access. The applicability

of sustainable development, and more urgently SES, have reframed the challenges of water

governance at the international level; requiring eco-socio-sustainability, against the backdrop of

Anthropocene exigencies. The consequences of this for water governance are manifold: Law

regulates our human interactions, as well as the interactions between humans and other

organisms, and non-living components in our environment. As such, law plays a crucial role in

setting the standards for these interactions. Historically these standards have allowed, and even

facilitated human-to-human, and human-to-non-human interactions, which have resulted in

profoundly inharmonious planetary consequences. As Robinson explains, law ‘is deeply

implicated in the systems that have caused the end to the Holocene, and at once is central also

to the reforms needed to cope with the emerging Anthropocene’.317

In response to this there must be a willingness to reimagine law and governance in ways which

allow for more appropriate, harmonious interactions and for realising effective ways to pursue

equitable, sustainable and integrated modes of living within new ecological parameters. The

emergence of water governance approaches which complement and reflect the unique and

multi-layered characteristics of the human right to water may be understood as manifestations

of this ‘new thinking’318

that is so desperately needed if the consequences of the Anthropocene

are to be mediated. Such approaches will be considered in more detail in Chapters Five and

Six.

Such new thinking also impacts on the analysis within this chapter. A legal analysis of any

particular right almost inevitably includes the identification of the legal status of that right (as

well as associated considerations around compliance). Here, this would make the primary

operative question ‘what is the legal status of the human right to water in international law?’

While asking this may have some merit, perhaps the more pertinent question to ask, in light of

an understanding of the right to water as unique and multi-layered, is whether the

acknowledgement of a human right to water at the international level has created, or reinforced

an imperative for States to act towards its realisation. Not seeking to define the precise legal

317

N Robinson ‘Fundamental Principles of Law for the Anthropocene?’ (2014) 44 Environmental Policy and Law

13-27, 13. 318

A Grear ‘Human Bodies in Material Space: Lived Realities, Eco-crisis and the Search for Transformation’

(2013) 4/2 Journal of Human Rights and the Environment 111-115.

81

status of such an imperative leaves States able to respond to the urgent need to realise people’s

right to water, without the added complications of determining legally binding obligations,

which are anathema to many States, and for which there remains no effective mechanism for

pursuing individual rights violations at the international level.319

Such an approach affirms the

existence of a human right to water in international law, while acknowledging the significant

limitations around status and enforcement.

The normative importance of such an affirmation at the international level remains: access to

sufficient water continues to be emphasised as a human right necessary for dignified existence,

as well as a specific international development goal. But such a shift in emphasis may allow the

reality to be acknowledged that, despite their international character, ‘[H]uman rights and the

human rights movement depend on governments and on the state system’320

for their respect,

protection and fulfilment. This inevitably leads this thesis to focus next on fulfilment of the right

to water through water governance at the level of the nation-state, and to one State in particular;

the Republic of South Africa.

319

As previously discussed, there are serious conceptual and practical problems with attributing a human right to

water as deriving from the Article 6 of the ICCPR in a way that requires immediate fulfilment. Consequently the

individual communication mechanism for alleged rights violations, as established in the first optional protocol to

the ICCPR, would not be applicable. Furthermore, while it is easier to attribute a human right to water as a

derivative of Articles 11 and 12 of the ICESCR, the corresponding obligations would be largely subject to

progressive realisation, making it more difficult to adjudicate on whether a particular State party’s steps towards

realisation of the right were insufficient to fulfil their obligation at any point in time. Also the ICESCR lacks an

equivalent individual communication mechanism, which means there is no forum to consider specific rights

violations under the Covenant structure. See M Craven The International Covenant on Economic, Social and

Cultural Rights: A Perspective on its Development (Clarendon Press, 1995); J Rehman International Human

Rights Law (2nd

ed, Pearson, 2010). 320

L Henkin, ‘That “S” Word: Sovereignty, and Globalisation, and Human Rights, Et Cetera’ (1999) 68 Fordham

Law Review 1.

82

3 Water in South Africa

‘Reconciliation means that those who have been on the underside of history must see that there

is a qualitative difference between repression and freedom. And for them, freedom translates

into having a supply of clean water, having electricity on tap; being able to live in a decent home

and have a good job; to be able to send your children to school and to have accessible health

care. I mean, what’s the point of having made this transition if the quality of life of these people

is not enhanced and improved? If not, the vote is useless.’

Archbishop Desmond Tutu321

‘[M]ost proponents of a Bill of Rights in South Africa see it as an instrument designed to block

rather than promote any significant social change’.

‘The battle for human rights in our country has essentially been a struggle for the vote and not

for a Bill of Rights.’

Justice Albie Sachs322

3.1 Introduction

This chapter begins by charting the current shape of access to water in South Africa. In order to

put into perspective the central research question of this thesis -the degree to which a right to

water can achieve access to sufficient water – it is important to understand how close the

country currently is to achieving universal, sufficient access. The chapter then considers South

Africa’s unique legal/ political history, and how this has affected the country’s current water

topography, and why an explicit right of access to sufficient water323

has been adopted. The

effects on South Africa of more general, regional and paradigmatic shifts in water governance

321

“South Africa; Tutu Says Poverty, Aids Could Destabilise Nation” (4 November 2001). Available at:

<http://allafrica.com/stories/200111050100.html> (last accessed 27 July 2016). 322

A Sachs Protecting Human Rights in a New South Africa (Oxford University Press, 1990) 12, 32. 323

Note: The exact constitutional right is the right of ‘access to sufficient water’. But for the sake of brevity, and

where the elements of ‘access’ and ‘sufficiency’ are not important to the instant discussion, the shorthand ‘right to

water’ is used.

83

are also analysed, including in particular, moves towards greater use of private and privatesque

modes of water service delivery, characterised through a ‘water as commodity’ paradigm. The

extent to which such moves create conflict with the fulfilment of a right of access to sufficient

water, is specifically considered.

The legal framework for water governance in South Africa is analysed, including national water

policies, and legislation, as well as the impact and influence that water governance at the

international level has had and continues to have, on South African water governance.

Particular focus is given to the right of access to sufficient water in the Bill of Rights in the 1996

Constitution, and to how this has been interpreted and implemented. Focus on this key

Constitutional provision allows the thesis to continue to examine how effective the right to water

has been, and to consider how effective it could be in securing sustainable, sufficient access to

water for everyone in South Africa.324

3.2 Access to water in South Africa; resources, scarcity and inequality

Any discussion of water governance is framed within the reality that water in South Africa is a

scarce resource.325

Increasing demand from urban centres, for water for domestic use, jostle with

demands from industry, mining and agricultural sectors.326

These demands are made in a

country that has rainfall less than the global average, falling unevenly across the country.327

Over

a decade ago the South African Department of Water Affairs and Forestry (DWAF) warned of

the unsustainable nature of water use:

With just 1200Kl of available freshwater for each person each year… we are at the

threshold of the internationally used definition of “water stress”. Within a few years,

population growth will take us below this level. South Africa already has less water per

person than countries widely considered to be much drier, such as Namibia and

Botswana.328

324

Although the Constitutional right of access to sufficient water does not that such access must be sustainable, it is

broadly acknowledged that access to water must be achieved sustainably in order to ensure the continuing

fulfillment of the right. This is clearly accepted in the ‘Johannesburg Declaration on Sustainable Development’

UNGA A. Conf/199/20 September 2002 Annex at 18. Available at: < http://www.un-documents.net/jburgdec.htm>

(Last accessed 27 July 2016). See discussion at 2.5.3. 325

M Kidd Environmental Law (2nd

ed, Juta & Co. Ltd, 2011) 64. 326

Ibid 65. 327

Ibid 64. 328

Department of Water Affairs and Forestry White Paper on a National Water Policy for South Africa (April

1997). Paragraph 14.

84

A brief overview of the General Household Survey (2014)329

, and the South African Human

Rights Commission Report (2014)330

gives the most recent picture of the nation’s access to water

for domestic use.

The percentage of households in the Eastern Cape with access to water decreased from 80.5%

in 2013 to 78.5% in 2014, making it the province in which households had the poorest access

to water in 2014. Access in other provinces in 2014 was as follows: KwaZulu-Natal

86.5%, Mpumalanga 87.1%; Western Cape 98.9%; Free State 95.3%; Gauteng 96.4%; Northern

Cape 95.8% and North West 87.2%. Average access nationally in 2014 was 90%. An estimated

46,3% of households had access to piped water in their dwellings in 2014. A further 27%

accessed water on site while 14% relied on communal taps and 2,7% relied on neighbours’

taps.331

With a total population of 52,980,000 in 2014332

this means that 5,298,000 people lacked

access to on-site or off-site piped or tap water in 2014.333

Of those who received piped water

from a municipality, almost 25% experienced interruptions to their piped water supply at least

once a month334

.

It is important to acknowledge that since 1994, access to water has improved for many South

Africans. In 1994 it was estimated that around one quarter of the total population (12 million

people) did not have access to piped water.335

The household survey for 1995336

reported that

33% of African households, 72% of coloured, and 97% of both Indian and white households,

had accessed to water from an on-site tap. 28% of African households in non-urban areas

obtained water from a river, stream, dam or well, and 16% obtained water from a borehole.

329

The General Household Survey (GHS) 2015 is embargoed until the end of 2016. Consequently the GHS 2014

represents the most up-to-date statistics available from this survey. Meanwhile, ‘Statistics South Africa’ reports that

83.5% of the total population of South Africa have accessed to piped water. The report does not provide statistics

for each province. See: <http://cs2016.statssa.gov.za> (Last accessed 27 July 2016). 330

‘Report to access sufficient water and decent sanitation in South Africa: 2014’ South African Human Rights

Commission. Available at: <http://www.sahrc.org.za/home/21/files/FINAL%204th%20Proof%204%20March%20-

%20Water%20%20Sanitation%20low%20res%20(2).pdf> (Last accessed 27 July 2016). 331

All percentages from the General Household Survey 2014 (embargoed until 27 May 2015):

<http://www.statssa.gov.za/publications/P0318/P03182014.pdf> (last accessed 16 February 2016). Hereafter GHS

2014. 332

GHS 2014.

333

Author’s own calculation based on figure for total population of South Africa in 2014. Note: the total population

for 2016 is reported as 55.6 million people. See: <http://cs2016.statssa.gov.za> (Last accessed 27 July 2016). 334

24.4%. GHS 2014. Fieldwork undertaken in February 2010 in Winterton in rural Kwa-Zulu Natal concurred

that interrupted water supply is regularly experienced, with significant associated consequences for health and

education as well as discrimination. 335


for an Equitable Water Policy’ (2010) Review of Radical Political Economics 1-20, 6. 336

‘Living in South Africa: Selected findings of the October Household Survey’ Central Statistics. Available at:

<http://www.statssa.gov.za/publications/LivingInSA/LivingInSA.pdf> (Last accessed 27 July 2016).

85

Among African households who had to fetch water from a source that is not on site, 17%

travelled at least one kilometre to reach the source.

Since 2000, South Africa has embraced MDG target 7C: To halve, by 2015, the proportion of

people without sustainable access to safe drinking water and basic sanitation. Using 1994 as the

baseline indicator, 23.4% of the population lacked sustainable access to water and sanitation at

this standard. Target 7C required that this be reduced to 11.7%. By 2011/12 this had been

achieved and exceeded, with 10% of the country’s people lacking safe drinking water and

sanitation.337

But, despite improvements, access to sufficient water remains a daily struggle for

many, and a significant stumbling block to both socio-economic development and political

stability338

.

These statistics only present a picture of people’s access to water per se. They do not indicate

the quantity of water people access and the reasons why some access less than is deemed

sufficient339

. Consequently the figure of 90% of the national population that has access to water

does not indicate that the same percentage of people have access to sufficient water as Section

27 of the Constitution stipulates. This issue has significant bearing not only on people’s general

level of health and well-being340

but also has been a key feature of the legal disputes over the

constitutional provisions on the right to water341

. Internationally sufficient water has been

quantified variously between 20 and 50 cubic litres per person per day (lpd)342

. In South Africa

the ANC’s Reconstruction and Development Programme (RDP)343

set sufficient water at a

minimum quota of 25 lpd, available within 200 metres of a household.344

337

Millennium Development Goals Country Report 2013: The South Africa I know, the home I understand.

Statistics from page 93. Available at <http://www.statssa.gov.za/wp-content/uploads/2013/10/MDG_October-

2013.pdf> (Last accessed 27 July 2016). 338

A Russell Bring Me My Machine Gun: The Battle for the Soul of South Africa, from Mandela to Zuma (Perseus

Books, 2009).

339

Neither do these statistics give any information on water quality. The Water Services Act, discussed below, aims

to regulate water quality as well as quantity (see GN R 509 Government Gazette of 8 June 2001 - Regulation 5). 340

P Bond & J Dugard “Water, Human Rights and Social Conflict: South African Experiences” (2007) 1 Law,

Social Justice & Global Development Journal (LGD). Note also that the author’s fieldwork affirmed the

connection between access to contaminated water and a range of health problems for residents interviewed in

Winterton, Okhombe, Woodford, and Burlington. Quality of water supply is also a crucial aspect of the definition

of the human right to water as detailed by General Comment 15. 341

See discussion below of cases Manqele and Mazibuko. 342

P H Gleick ‘The Human Right to Water’ (1998) 1 Water Policy 496.

343

The RDP is a coherent socio-economic policy framework, the first priority of which is to begin to meet the basic

needs of people - jobs, land, housing, water, electricity, telecommunications, transport, a clean and healthy

environment, nutrition, health care and social welfare: 2.6.6 The RDP's short-term aim is to provide every person

with adequate facilities for health. The RDP will achieve this by establishing a national water and sanitation

programme which aims to provide all households with a clean, safe water supply of 20 - 30 litres per capita per day

(lpd) within 200 metres, an adequate/safe sanitation facility per site, and a refuse removal system to all urban

86

The World Health Organisation and World Bank both recommend between 20 and 40 lpd.

Peter Gleick has calculated sufficient water to be 50 lpd (see Figure 1).345

These calculations

were used by the South African High Court and Supreme Court of Appeal in the recent case of

City of Johannesburg v L. Mazibuko.346

However, it is significant to note that the Constitutional

Court’s judgment in the same case reduced the quota, as discussed in Chapter Four.

Figure 1

Purpose Recommended requirement (litres per

person per day)

Drinking watera

5

Sanitation 20

Bathing 15

Food preparationb

10

Total 50

As discussion in Chapter Four of the case of Mazibuko shows, defining sufficient water is

problematic. But even using the RDP quota of sufficient water (25 lpd), a significant

proportion of South Africans still do not have access to even this, 21 years after the formal end

of apartheid. Fulfilment of the right of access to sufficient water therefore remains a crucial aim.

households. 2.6.7 In the medium term, the RDP aims to provide an on-site supply of 50 - 60 lpd of clean water,

improved on-site sanitation, and an appropriate household refuse collection system. Water supply to nearly 100

per cent of rural households should be achieved over the medium term, and adequate sanitation facilities should

be provided to at least 75 per cent of rural households. Community/household preferences and environmental

sustainability will be taken into account. 2.6.8 The RDP's long-term goal is to provide every South African with

accessible water and sanitation. See <http://www.anc.org.za/show.php?id=235> (Last accessed 27 July 2016). 344

Note: Water must also be of sufficient quality, that is to say it must be clean and clear. See Water Services Act

1997, Section 1, and discussion below at 3.3.2. 345

Peter H. Gleick, ‘The Human Right to Water’ (1998) 1Water Policy 496. 346

City of Johannesburg v L. Mazibuko (489/08) [2009] ZASCA 20. a

Minimum required to sustain life in moderate climatic conditions and average activity levels. b

Excluding water to grow food.

87

3.3 History of the development of water law in South Africa

The history of water law and the water institutional reforms discussed below cannot be divorced

from the political, economic, social and environmental changes experienced in the country.

Fundamental political shifts have created significant new water legislation.347

For example, the

Irrigation and Water Conservation Act 8 of 1912 followed the unification of South Africa in

1910; the Water Act 54 of 1956 followed the election of the National Party in 1948 (and the

formal entrenchment of apartheid policies); and the election of the ANC in 1994 led directly to

the Water Services Act of 1997, and the National Water Act 36 of 1998, amongst other

transformative legislation.

The changing political economy of the country has catalysed processes of industrialisation and

urbanisation at different times, including most notably during apartheid’s ‘heyday’348

in the

1950s, and in the immediate aftermath of majority rule in 1994. These changes, with their

consequent social and environmental implications, have shaped the ways in which water rights,

and water law more generally, have developed.

The development of water law is considered below in two periods: 1652 to 1994, and 1994 to

2016. While the timespan covered by these two periods is uneven (342 years and 22 years

respectively), the dividing line between them is important. The first represents the period of

white, European, minority rule, while the second refers to the current chapter of majority rule.

While such a stark distinction risks masking a more nuanced understanding of historical

developments, it does offer a clear framework within which to chart the evolution of the law in

this area, as well as providing scope to contextualise developments in water law within a broader

(if necessarily inexhaustive) national narrative.

Consequently, the ensuing discussion is not intended as a comprehensive history of South

Africa, nor does it seek to offer an exhaustive account of relevant movements like the ANC.

Rather its purpose is to provide an historical overview of the most significant events that,

directly or indirectly, have shaped the law relating to water from the beginning of established

European/colonial involvement in the country (1652),349

to the present day.

347

G R Backeberg ‘Water institutional reforms in South Africa’ (2005) 7Water Policy 107-123, 107. 348

N Worden The Making of Modern South Africa (3rd

ed, Blackwell Publishers, 2000) 107. 349

Before this date many European ships had landed at the Cape. But in 1652 the Dutch East India Company

(Verenigde Oostindische Compagnie, hereafter VOC) established a fortified provisions station at Table Bay.

Consequently, the date 1652 indicates the beginning of European involvement in South Africa. See S

Terreblanche A History of Inequality in South Africa 1652-2002 (University of Natal Press, 2002) 153-154.

88

For thousands of years people have inhabited the territory that is now South Africa. As long ago

as c.1000BC Khoikhoi herders moved into South Africa from northern Botswana. Therefore,

human relations with water resources in the country predate the arrival of Europeans by many

centuries. Regulation of water prior to the colonial period reflected African customary law,

which stipulated that water and land were free. 350

Chiefs regulated land tenure, but private

ownership of water and land was not permitted.351

This approach to water resources remained

after the first European settlements were established, and a dual system of ‘water rights’

(regulating human use of water) existed until the expansion of the VOC’s352

activities in the Cape

began to encroach on the native communities. This eventually resulted in the subjugation of

these communities, and the imposition of European rule over water regulation, characterised by

the concept of ownership over water, in contrast to indigenous approaches.353

3.3.1 1652 to 1994

Until the election of the African National Congress (ANC) in 1994 water law in South Africa

evolved with little regard for water scarcity.354

Instead, principles derived from European

countries, where water supply was plentiful, were applied in a country with perennial water

shortages.355

From the period of the first Dutch colonisation of the Cape in 1652 to the Union

of South Africa in 1910 the common law changed from a position of State allocation of water to

what might be considered a more traditional model of ‘riparian rights’,356

namely ownership and

use of water being linked principally to the ownership of the land through which the water

flowed. This change was brought about primarily to serve the de facto apartheid system of white

minority domination and colonisation of resources.357

During the 17th

and 18th

centuries a system

of Roman-Dutch law was established in the Cape. Consequently, Roman law principles were

incorporated, albeit in modified forms.358

In Roman law, water generally was classified as res

350

D D Tewari ‘A detailed analysis of evolution of water rights in South Africa: an account of three and a half

centuries from 1652 AD to present’ (2009) 35/5Water SA, 693-710, 695. 351

Ibid. 352

S Terreblanche A History of Inequality in South Africa 1652-2002 (University of Natal Press, 2002) 304. 353


centuries from 1652 AD to present’ (2009) 35/5Water SA, 693-710, 695. 354

P Bond ‘South Africa’s rights culture of water consumption: Breaking out of the liberal box and into the

commons?’ (Syracuse conference, Cape Town, February 2010) 1. 355

G J Pienaar & E van der Schyff ‘The Reform of Water Rights in South Africa’ (2007) 3/2 Law Environment and

Development Journal, 179-194, 183. 356

M Kidd Environmental Law (2nd

Ed. Juta & Co. Ltd, 2011) 64. 357

M Meredith, Diamonds Gold and War - The Making of South Africa (Simon & Schuster, 2007) 525. Note:

Although the legal machinery labelled apartheid was not amalgamated in to a single coherent policy until the

election of the National Party in 1948, discriminatory and racially differential laws pervaded British colonial rule

and independence until World War II. 358


Development Journal, 179-194, 182.

89

publicae, indicating that it was in the public realm (although water in containers could be

privately owned). More specifically, water in streams and rivers was referred to also as res

publicae, while rain water was designated res extra commercium, literally meaning a non-

negotiable thing; something which cannot be privately owned. Applied in the Cape, water in

navigable streams remained res publicae (meaning that water in a stream or river could not be

privately owned, but the river banks could be), while water in non-navigable streams, and spring

water on land became the private property of the landowner.359

The role of the government was

understood as that of custodian of water sources (dominus fluminis), with corresponding rights

to regulate and control the use of water in navigable streams.360

After around 150 years of Dutch domination, the Cape was formally ceded to Britain in 1814,

and thereafter, despite setbacks, British influence increased throughout the country.361

Initially,

British policy in South Africa was to avoid direct political control of the interior.362

But from

1870 onwards this was replaced by a contrasting, and increasingly aggressive policy of

subjugation and annexation. Indeed this policy was to spread beyond the borders of South

Africa, into the whole sub-continent.363

In this context of greater direct British influence, an alternative set of principles for water

governance was adopted.364

Premised on English law, riparian owners (those owning the river

banks) were given the right to share in the water from that river. While the consequence of this

juridical shift may not be immediately apparent, the adoption of a more developed form of

riparian rights meant that the government’s former role as custodian of water resources was

greatly reduced.365

The former principle, that water with a perennial flow was res publica, and

consequently that riparian owners had no inherent right to the water arising on their land, was

overturned. This reversal, and the consequent bolstering of riparian owners’ rights is clearly

asserted by Hodges CJ in Silberbauer v Van Breda:

359

Ibid at 182. 360

C G Hall The Origin and Development of Water Rights in South Africa (Oxford University Press, 1939) 8. 361




Ibid at 22. 364

See Silberbauer v Van Breda Privy Council, (1869) 6 Moo PCCNS 319 (appeal from the decision in Silberbauer

v Van Breda and the Cape Town Municipality, 1866, 5 Searle 231), Hough v van der Merwe Cape Supreme

Court, 27 August 1874, Buch 148, Juta. 365


Development Journal, 179-194, 182.

90

‘the right of the freeholder to water rising on springs from his land is undisputed and

undisputable. He may use it as he pleases.’366

Appreciation of the confluence of these two developments is crucial to understanding how

water governance in South Africa evolved in such an unequal and discriminative way. Limiting

the role of government as dominus fluminus removed the impetus to consider water resources

at a macro level, or as a common, res publicae good. Instead, water became understood as

something to be privately governed by those who owned the land. The potential for such a

mode of governance to generate inequalities is clear. But it was to be compounded by the

deliberate separation of non-white South Africans from the land.

Two Acts in particular strengthened the connection between land ownership and water

ownership. First, the Irrigation and Water Conservation Act 8 of 1912 confirmed that spring

water on land, and water flowing over land, were the property of the landowner. Therefore the

landowner could use the water, albeit that the water should also be available for lower-lying

landowners.367

Second, the Native Land Act 1913, stipulated that Africans (non-whites) could no

longer own land outside the ‘native reserves’ (which made up only between eight and 13 per

cent of South African territory)368

. Consequently, this disenfranchisement from the land meant

disenfranchisement from water also.

Throughout the twentieth century, despite a shift in emphasis on water supply from agriculture

towards a growing industrial sector, the riparian rights paradigm remained paramount. This had

inevitable consequences for uneven water distribution, something that was exacerbated by the

fact that because water use and ownership was linked to land ownership, and because the white

minority population owned 87% of the land369

, the majority black population was thus inevitably

placed at a normative and institutional socio-economic disadvantage. Until 1994 (and the end of

apartheid), white South Africans enjoyed an abundance of relatively low-cost water, indicated

perhaps most cruelly by their having one of the highest per capita levels of home swimming

pools and golf courses in the world.370

The majority of government infrastructural investment

366

Cited by De Villiers CJ in Vermaak v Palmer (1876) 6 Buch 25, 33. 367

See Le Roux v Kruger, Cape of Good Hope Provincial Division, Judgment of 14 June 1986, 1986 (1) SA 327,

Juta. 368


Land Reform Report: <http://www.progress.org/land16.htm> (Last accessed 27 July 2016). 370


commons?’ (Syracuse conference, Cape Town, February 2010) 10.

91

went into white-dominated cities and suburbs, leaving those living in the ‘Bantustan’ system of

rural homelands with minimal supply.371

Racial segregation

The legal changes to water governance, discussed above, took place against an enduring

backdrop of inequality and segregation along racial lines. While the now infamous apartheid

system - as a single, deliberate and coherent legal, political, and religious system – did not begin

until 1948,372

perceptions of white racial superiority in South Africa have been present since the

earliest encounters between Dutch settlers and Khoisan pastoralists.373

These perceptions were

given legal status, and acquired a formal structure, early in the history of the VOC’s activities in

the Cape. Company officials and settlers (free burghers), both white, headed the hierarchy

above black categories of ‘Hottentots’ (Khoisan), free blacks (manumitted slaves) and slaves.374

With some exceptions, this meant that labourers were black, while landowners and employers

were white. Formal slavery continued in the Cape from 1658 to 1834, and contributed greatly

to the embedding of racial hierarchy and segregation.375

Even once slavery was abolished, it was

replaced by what Terreblanche has called ‘unfree labour’.376

Despite the relative abundance of

available land during the middle of the 19th

century, black workers were largely excluded from

land ownership, and instead, remained in similarly unequal and exploitative relationships with

the white landowning employers. Consequently, when diamonds and gold were discovered in

1867 and 1868 respectively, black unfree labour was already an established economic and

socio-political phenomenon, ready to meet the new surge in demand from the mines ‘for cheap

and docile African labour’.377

Even where legislation contained no explicit requirement of racial segregation, the

consequences of it were to embed a racially segregated system. In the Cape, the Masters and

Servants Ordinance of 1841 regulated labour contracts without reference to race.378

But the fact

that almost all masters were white and nearly all servants were black meant that even such

ostensibly ‘colour blind’ provisions formalised and perpetuated social division along racial

371

Id. For more detailed discussion of Bantustans see S Terreblanche A History of Inequality in South Africa

1652-2002 (University of Natal Press, 2002) 261-268. 372



Ibid at 75. 374

Ibid. 375


Ibid. 377

Ibid. 378


ed, Blackwell Publishers, 2000) 78.

92

lines.379

At the turn of the century several Acts were passed with overtly discriminatory

provisions. Perhaps most notably, the Glen Grey Act of 1894, limited the amount of land that

African (black) families could own within their own homelands, effectively forcing black

workers to remain labourers for white farms. This was heralded as a necessary and desirable

feature of the emerging policy of formal and practical segregation, as the then Prime Minister of

the Cape Colony, Cecil John Rhodes summarised in his speech to parliament on the second

reading of the Act:

‘I do not feel that the fact of our having to live with the natives in this country is a reason for

serious anxiety. In fact, I think the natives should be a source of great assistance to most of us.

At any rate, if the whites retain their position as the supreme race, the day may come when we

shall all be thankful that we have the natives with us in their proper position.’380

In 1902 a segregated location was formally established for Africans in Cape Town.381

The

School Board Act of 1905 imposed compulsory educational segregation in government

schools.382

In 1910 the Act of Union enfranchised all white adult males, but not black males.

The franchise for the Cape Town municipality, established in 1839, continued to allow a small

number of black voters, dependent on property requirements. However, black residents in the

municipality were not permitted as parliamentary candidates, being reliant on whites for

representation.383

While the Act of Union unified South Africa into one colonial territory, it also acted as a

catalyst to expand and entrench the repression and segregation of non-whites in the country.

The Dutch Reformed Church Act, 1911 excluded black people from membership; the Mines

and Works Act, 1911 imposed a colour bar to protect white workers; the Defence Act, 1912

provided for a white-only citizenship force; and as mentioned above, the Natives Land Act,

1913 segregated land ownership along racial lines. At this time, according to Worden ‘a cogent

ideology of segregation emerged and was implemented’.384

379

Ibid. 380

Transcription of Cecil John Rhodes’ speech on the second rereading of the Glen Grey Act 1894, to the Cape

House Parliament, 30 July 1894. Available at: < http://www.sahistory.org.za/archive/glen-grey-act-native-issue-cecil-

john-rhodes-july-30-1894-cape-house-parliament> (Last accessed 27 July 2016). 381



Ibid. 383

Ibid. 384

Ibid at 82.

93

The African National Congress

Perhaps unsurprisingly, the African National Congress (ANC) was also established at this

tumultuous point in the country’s history. Formed in Bloemfontein on the 8th

January 1912, the

ANC (initially named the South African Native National Congress) was assigned the task of

‘being a midwife in the process of national rebirth and regeneration’385

. Comprising delegates

from across South Africa’s provinces, as well as from Bechuanaland (now Botswana), and

representing a commitment to unity beyond tribal or racial lines, the ANC was to be an

inherently anti-colonial political vehicle to achieve ‘African freedom and liberty’.386

Passed the following year, the Native Land Act, 1913 quickly became a principal target of

opposition by the ANC. The Act, which prevented non-whites from ownership of all land

except the approximately 13% of land designated as native reserves, quickly removed the threat

to white farmers that a growing rural black population had been perceived to be. Furthermore,

it created a mass of cheap rural labour, as well as leading to an exodus towards urban centres.

But it also represented the legalised theft of land by a white-only government, which acted as a

rallying cry for the ANC. In 1916 ANC Secretary General, Solomon Plaatje, described the

effects of the Native Land Act as follows:

‘Awakening on Friday morning June 20, 1913, the South African native found himself, not

actually a slave, but a pariah in the land of his birth.’387

Experienced in this way, the Act transcended the practical consequences of people being

separated from the means to subsist. It symbolised the great injustice at the heart of the South

African polity. The ANC mounted a campaign against the Act, culminating in a mission to the

British Government in London in 1914. But despite some sympathy from individual

Westminster MPs, the British Government did not intervene, and the mission was swiftly

overshadowed by the onset of the First World War.388

While the response of the ANC to the Native Land Act was not successful, it marks the

beginning of the ANC finding its place as a locus of organised political protest and popular

consciousness-raising. Over the next three decades the ANC continued to publically critique

and protest against segregation injustices. It also underwent fundamental changes, navigating its

relationship with communism and pan-Africanism, and holding in tension opposing ambitions

385

F Meli A History of the ANC: South Africa Belongs to us (James Currey Ltd, 1989) 40. 386

Ibid. 387

S Plaatje Native Life in South Africa before and since the European War and the Boer Rebellion (Cape Town,

1982) 21. 388

F Meli A History of the ANC: South Africa Belongs to us (James Currey Ltd, 1989) 46.

94

variously to achieve integration into ‘common society’389

, or to replace the state with a ‘black

republic’.390

Its political influence waned in the 1930s, in part due to the rise of the Communist

Party (CP) and trade unions, as alternative sites of protest. But by the time the National Party

was elected in 1948, the ANC was again firmly placed to lead the opposition to the latest

manifestation of racial segregation and discrimination: formal apartheid.391

Apartheid

By the early 1940s the segregationist project that had coalesced after the Act of Union, came

under increasing pressure, as the number of Africans moving permanently to the cities grew.

The relative abundance of employment opportunities in urban centres, compared to within

reserves, drove this urbanisation, while simultaneously creating a new challenge for the white

minority government: How to maintain racial hierarchy while allowing white demands for black

urban labour to be met? The answer- apartheid - emerged as a revision of segregationist

policies symbolising a revival of Afrikaner392

nationalism393

. Apartheid became the slogan of the

National Party (NP), which narrowly won the 1948 general election, and would retain control of

government until 1994. The Union of South Africa remained a dominion of the British

Empire, then of the Commonwealth until 1961, when having been subjected to criticism of

apartheid policies, the country withdrew from the organisation. South Africa consequently

became an independent republic in the same year. This was a popular move amongst Afrikaner

nationalists, whose general distrust and resentment of British influence dated back to the Anglo-

Boer War (1899-1902).394

It also proved to be the beginning of ever-greater international

isolation for the new republic.395

Apartheid, literally meaning ‘apartness’396

or separateness, was pursued through a raft of new

legislation that codified and extended racial discrimination and segregation. Crucial to apartheid

389

Ibid at 82. 390

Ibid. 391

Ibid at 119. 392

The term Afrikaner is used here to describe white South Africans, typically whose first language is Afrikaans,

and whose ancestry is Dutch. However, this is not a strict definition. For instance a South African with other

European heritage, and for whom Afrikaans is not their mother tongue, may still identify as an Afrikaner, based on

a broader socio-political identity, as reflected in Afrikaner nationalism. 393

Afrikaner nationalism, like other nationalist movements, was a consciously forged political movement, complete

with its own mythology, designed to unify diverse Afrikaner political positions around the policies of the National

Party. See variously, J Cell The highest stage of white supremacy: the origins of segregation in South Africa and the

American South (1982, Cambridge University Press); D O’Meara Volkskapitalisme: class capital and ideology in

the development of Afrikaner nationalism, 1934-1948 (Cambridge University Press, 1983); N Worden The

Making of Modern South Africa (3rd

ed, Blackwell Publishers, 2000) 98-106. 394



Ibid. 396

Chambers English Dictionary definition.

95

legislation was the categorisation of all South Africans according to race: White; Coloured;

Asiatic (Indian); and Native (also described as Bantu, or African).397

Every facet of society, and

of social interaction began to be addressed by apartheid legislation. The Prohibition of Mixed

Marriages Act, 1949, and the Immorality Act 1950 together banned all sexual contact between

white South Africans and other racial groups. The Group Areas Act, 1950, and the Natives

Resettlement Act, 1954, facilitated a policy of racially segregated residential areas, and allowed

the en masse relocation of Indian residents from central Pretoria and Durban, and of Coloured

inhabitants from central Cape Town.398

The Reservation of Separate Amenities Act, 1953,

brought compulsory segregation to bear on all public amenities from transport, to

entertainment and sports facilities.399

In the context of this energetic imposition of institutionalised apartheid, the Water Act 54 of

1956 represents an important milestone in the history of water governance in South Africa.

Replacing the Irrigation and Water Conservation Act (1912) the Water Act 1956 sought to

address growing demand from mining, agriculture and industry, while introducing greater

control over ‘abstraction, use, supply, distribution and pollution of water’.400

As such, the Act

aimed to sustainably supply the large, thirsty (water-intensive) economic development projects,

which the NP prioritised in rural areas, where their support base was located. As competition

for water intensified, the English law-inspired riparian rights mode of water governance became

inadequate. As explained above, and as summarised by Hodges CJ in Silberbauer v Van Breda,

the riparian principle was that the right of the landowner to water on their land was

undisputable.401 However, this model, conceived in an agrarian context, was ill suited to multiple

intensive demands on water within the same geographical area. If landowners upstream can

remove water as they please, developments downstream will be affected. Therefore, the Water

Act partially revived the dominus fluminis principle, reinstating the State as the controller of

water in certain ‘control areas’, to be administered in the national interest.402

Understood as part of the apartheid project, the Water Act demonstrated a willingness to affect

redistribution of water resources, but only for the purposes of facilitating economic

development, the beneficiaries of which were predominantly white South Africans. The Act

397

Population Registration Act No. 30 of 1950. 398



Ibid. 400

Department for Water Affairs and Forestry, South Africa, (1986) Management of the Water Resources of the

Republic of South Africa. Pretoria. At. 1.9. 401

Cited by De Villiers CJ in Vermaak v Palmer (1876) 6 Buch 25, 33. 402


centuries from 1652 AD to present’ (2009) 35/5Water SA 693-710, 701.

96

retained the crucial exclusionary connection between land and water, while reforming this

connection in order to better achieve what was framed as the national interest, meaning the

interest of the white population. Thus the Act was simultaneously reforming and conservative.

It required both a reconception of proprietary interests, and the retention of the established

racial hierarchy. As Goldblatt & Davies explain, the Act illustrates the pursuit of deliberately

inequitable water management, skewed towards the interests of white landowners and industry

chiefs.403

Ultimately such management resulted not just in inequities of water use between racial

groups, but also in inefficient and unsustainable use of water resources in a water-scarce

country.404

The Freedom Charter, and water as a political aim

In response to the formalisation of the apartheid regime under the National Party, and as part

of the political protest against it, the African National Congress (ANC) and the South African

Indian Congress adopted the Freedom Charter on June 26th

1955 at a Congress of the People

in Kliptown, Soweto. This was to be a galvanising moment in the so called Defiance Campaign,

which aimed to raise political consciousness and embrace all democratic forces in South Africa

towards liberation from apartheid.405

Framed as a series of aspirational statements for a post-apartheid South Africa, the Freedom

Charter became the manifesto of the ANC.406

Its claims to individual equality and dignity sit

alongside calls for wealth redistribution, nationalisation of mineral resources and fair

distribution of land, food, health care and education. The fusion of land and water rights, which

occurred during British colonial rule, and was maintained throughout the apartheid era, can be

seen to be challenged in the preamble:

‘[O]ur people have been robbed of their birthright to land, liberty and peace by a form of

government founded on injustice and inequality’.407

Although water was not specifically mentioned in the Freedom Charter, the inseparable

association of water with claims to food, health, and land among others, made equitable

redistribution of water an obvious and important aim of the ANC, evidenced by the inclusion

403

M Goldblatt & G Davies ‘Water, energy and sustainable economic development in South Africa’ (2002) 19/3

Development Southern Africa 369-387, 381. 404

Ibid. 405


Ed, Blackwell Publishers, 2000) 121. 406

The Freedom Charter, 1955. Available at: <www.anc.org.za/ancdocs/history/charter.html> (Last accessed 27 July

2016).

407

Ibid Preamble.

97

of the right to sufficient water in the interim Constitution, then the 1996 Constitution408

as well

as the ANC’s promise of universal free basic water, made during the 2000 municipal

elections.409

It is beyond the scope of this chapter to analyse apartheid’s disintegration in detail. Suffice it to

say that from the late 1970s and early 1980s, a combination of increasing internal resistance and

external (international) opposition, including economic sanctions, began to undermine the

regime. By 1990 these combined pressures had become sufficient to compel the newly-elected

President, F.W de Klerk to unban the ANC (as well as the Pan Africanist Congress - PAC, and

the Communist Party), and to commit to a process of significant political change. Nelson

Mandela was released, and almost immediately began a formal process of negotiation for

transitioning to majority rule. This involved the repeal of key apartheid legislation including the

Group Areas Act, previously discussed. 410

In 1991 The Convention for a Democratic South

Africa (CODESA) was established to create a new constitution, producing an interim

constitution in 1993, which aimed to provide:

‘…a historic bridge between the past of a deeply divided society characterised by strife, conflict,

untold suffering and injustice, and a future founded on the recognition of human rights,

democracy and peaceful co-existence and development opportunities for all South Africans,

irrespective of colour, race, class, belief or sex.’411

3.3.2 from 1994 to the present day

The first multi-party, democratic elections were held in South Africa on the 27th

April 1994,

ushering in the formal beginning of the new democratic constitutional era. A government of

National Unity was elected with an ANC majority, and Nelson Mandela was inaugurated as

President.

408

Constitution of the Republic of South Africa, 1996. Approved by the Constitutional Court (CC) December

1996.Took effect on 4 February 1997. Section 27(1)(b): Health care, food, water and social security: (1) Everyone

has the right to have access to - (a) health care services, including reproductive health care;(b) sufficient food and

water;(c) social security, including, if they are unable to support themselves and their dependents, appropriate

social assistance. (2) The State must take reasonable legislative and other measures, within its available resources,

to achieve the progressive realization of each of these rights. (3) No one may be refused emergency medical

treatment.

409


commons?’ (Syracuse conference, Cape Town, February 2010) at 3. The level of free basic water supply was set at

25 cubic litres per person per day (Hereafter lpd). This figure has since been challenged and changed several times

as discussed in Mazibuko. 410


Ed, Blackwell Publishers, 2000) at 137. 411

Postscript to the Interim Constitution of the Republic of South Africa, Act 200 of 1993.

98

The practical consequences of inequitable water access, and the symbolic legacy of colonial and

apartheid policies to exclude non-white South Africans from the intrinsically linked resources

of land and water, meant that a thoroughly new approach to water governance was necessary.

With the advent of majority rule in 1994 it was clear that such a new approach must be based

on the acceptance of two fundamental factors: the extreme inequality of water distribution (pre

1994), and the overall scarcity of water in terms of the total available to the country. Crucial to

the form that this new approach took, was the inclusion of a right of access to sufficient water

within the new Constitution.

In order to appreciate the scope and impact of this right (and therefore the implications for its

inclusion), it is necessary to consider the Constitution as a whole, as well as the role that the

Courts (particularly the Constitutional Court) have played in interpreting this provision. The

role of the Courts is analysed in Chapter Four. But the remainder of this chapter considers the

constitutional right to water within the context of the Constitution’s Bill of Rights, before

discussing the relevant legislation that has been passed since 1994 in order to give effect to the

right to water.

Water in the new Constitution (1996)

Chapter 2 of the Constitution is the Bill of Rights. It contains a wide array of rights loosely

grouped as civil and political rights (inter alia equality412

, freedom413

, dignity414

), socio-economic

rights (health, food, water415

, education416

) and group rights (cultural, religious and linguistic

communities417

). These broad groupings correspond largely to the first, second and third

generation human rights as categorised by Karel Vasek.418

The extent of the protection of socio-

economic rights in the Constitution is however controversial.419

In the process of drafting the

412

Section 9. 413

Sections 12, 15, 16, 21. 414

Section 10. 415

Section 27. This section relates to health care, food, water and social security. 416

Section 29. 417

Section 31. 418

K Vasak, ‘Human Rights: A Thirty-Year Struggle: the Sustained Efforts to give Force of law to the Universal

Declaration of Human Rights’, UNESCO Courier 30:11, Paris: United Nations Education, Scientific and Cultural

Organization, November 1977.

419

See the first and second Constitution Certification judgments in relation to the inclusion and justicability of

socio-economic rights: re Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC);

Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996] ZACC 26: Here it was

held ‘At the very minimum, socio-economic rights can be negatively protected from improper invasion. In the light

of these considerations, it is our view that the inclusion of socio-economic rights in the [1996 Constitution] does

not result in a breach of the Constitutional Principles.’ [Paragraph 78].

99

Constitution, the African National Congress (ANC) government chose to incorporate these

rights, despite the counsel of the National Party, supported by the South African Law

Commission, that the Bill of Rights should stick to the traditional territory of civil and political

rights. It was asserted that incorporating socio-economic rights would embroil the courts in

problematic issues of resource allocation – a task that should be performed by the legislature

and executive.420

This warning of tensions regarding the separation of powers is echoed in recent

case decisions discussed below. This of course is not a South African issue alone421

, but raises

both comparative law instances of the difficulties of enforcing socio-economic rights as well as

more theoretical difficulties with their implementation, including at the international level.422

The ANC government chose, however, against maintaining the historical division between first

and generation rights, challenging the ‘unscientific’ nature of the division:

It is difficult to divide the protection of rights in negative and positive duties... Thus the

protection of the right to life, recognised as a political and civil right, requires not merely

forbearance on the part of the State, but also positive action.423

The State is required to ‘respect, protect, promote and fulfill’ each of the rights in the Bill of

Rights424

. The negative duty to respect is thus joined by the positive duties to protect, promote

and fulfill. Yet the socio-economic rights enshrined in the Constitution are qualified425

: Some

more than others. The right to sufficient water (alongside housing, food, health care) for

instance is to be realised through reasonable legislative and other measures, within the limits of

the available resources of the State, and only in a progressive (not immediate) way.426

However,

the rights of children set out in section 28 are not as qualified427

. All rights may be limited only

in terms of law of general application, to the extent that the limitation is reasonable and

justifiable in an open and democratic society based on human dignity, equality and

freedom.428

This corresponds largely to similar qualifications within international human rights

420

GE Devenish A Commentary on the South African Bill of Rights (1999, Lexis Nexis) at 357. 421

M Elliott & R Thomas Public Law (2nd

ed, Oxford University Press, 2014) 31. 422

Consider the obligations on States in the International Covenant on Civil and Political Rights (ICCPR) in

contrast to those in the ICESCR: Particularly the qualification of progressive realisation in Article 2 ICESCR that

finds no equivalent in the ICCPR. Discussed in detail in chapter two. 423

G.E Devenish A Commentary on the South African Bill of Rights (Lexis Nexis, 1999) 370. 424

Section 7 of the Constitution. 425

See section 36 of the Constitution: General limitation clause. 426

See section 27 of the Constitution. 427

See section 28(1)(c) of the Constitution. No mention is made in this section of ‘available resources’ or

‘progressive realisation’. The only limitations on the rights in this section are therefore those generally applicable in

section 36 (Limitation of Rights). 428

section 36.

100

law, including broadly the proportionality test employed by the European Court of Human

Rights429

.

The right to sufficient water is explicitly stated in section 27(1)(b) of the Constitution, as

qualified in Section 27(2):

(1) Everyone has the right to have access to - (a) health care services, including reproductive

health care; (b) sufficient food and water;430(c) social security, including, if they are unable to

support themselves and their dependents, appropriate social assistance.

(2) The state must take reasonable legislative and other measures, within its available resources,

to achieve the progressive realisation of each of these rights.

Other Constitutional rights are related, directly or indirectly, to this right, namely the right to

equality,431

right to human dignity,432

right to life,433

property rights,434

right of access to housing,435

rights of children,436

right to have access to courts,437

locus standi provisions,438

and the

‘environmental right’.439

Additionally, Section 39 of the Constitution (the Constitutional interpretation clause) requires

that a court, tribunal or forum must consider international law and may consider foreign law

when interpreting any legislation and when developing the common law and customary law.

This provision means that the scope of, and discourse around, an internationally acknowledged

human right to water is particularly pertinent to the domestic, constitutional position in South

Africa. Discourse around the scope and status of an international human right to water has

429

E Ellis The Principle of Proportionality in the Laws of Europe (Hart Publishing, 1999) 121. 430

Own emphasis 431

Section 9: Equality includes the full and equal enjoyment of all rights and freedoms, including the right to water. 432

Section 10: Sufficient water is essential for dignified existence. See discussion at 1.5.3. 433

Section 11: Sufficient water is also essential for life. See discussion at 1.5.1. 434

Section 25(8). Regarding measures to achieve land, water and related reforms in order to redress the results of

past racial discrimination. 435

Section 26: The RDP set access to sufficient water as being within 200 metres of a household. 436

Section 28 437

Section 34: Access to court is necessary if the right of access to sufficient water is to be practically justiciable. 438

Section 38 439

Section 24: Everyone has the right-

(a) to an environment that is not harmful to their health or well-being; and

(b) to have the environment protected, for the benefit of present and future generations, through reasonable

legislative and other measures that-

(i) prevent pollution and ecological degradation

(ii) promote conservation; and

(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable

economic and social development.

101

been considered at length in Chapter Two. The influence of international law upon Section 27

of the South African Constitution is discussed at length in Chapter Four.

Law in South Africa comes from several sources: legislation; judicial precedent; customary law

and international law440

. The Constitution of the Republic of South Africa (1996) is supreme:

‘Law or conduct inconsistent with it is invalid and the obligations imposed by it must be

fulfilled’.441

Legislation and court decisions give content to the rights within the

Constitution442

and, particularly regarding socio-economic rights and environmental law, judicial

decisions provide a rich source of jurisprudence. 443

Cumulatively, the status of the Constitution, and the scope of relevant constitutional provisions,

places a clear obligation on the state to respect, protect, promote and fulfill the right of access to

sufficient water. However, in order to be more accurate, this right of access to sufficient water

requires a definition of both sufficiency and access. Neither terms are defined in the

Constitution, but as already discussed, sufficient water has been defined in the literature

variously as between 20 and 50 lpd and has received legislative definition as 25 lpd.444

Sufficiency has been described as being dependent on three factors, accessibility, adequate

quality and adequate quantity.445

These factors encompass the five components of the human

right to water as interpreted by the Committee on Economic, Social and Cultural Rights,

namely that water must be sufficient, safe, acceptable, physically accessible and affordable.446

The Water Services Act 1997

Key legislation has been promulgated in order to give effect to the right of access to sufficient

water. The Water Services Act 108 of 1997 (WSA) is the principal legislative mechanism to

actualize the obligations of the State. Section 3 of the WSA provides that:

440

A Paterson & L J Kotze (Eds), Environmental Compliance and Enforcement in South Africa: Legal Perspectives

(Juta Law, 2009) 12. 441

Section 2 of the Constitution of the Republic of South Africa, 1996. Hereafter the Constitution. 442

See Section 39 of the Constitution 443

Following the principle of stare decisis (‘to stand by that which is decided’), courts are bound to abide by the

prior decisions of courts of an equal or higher status. Judicial decisions are binding, and the Judiciary can declare

legislation unconstitutional. However, there is a clear separation between the Judiciary and the Legislature, and the

Judiciary can never legislate. The relevant jurisprudence is discussed at length in chapter four.

444

Water Services Act 1997, Water Services Regulations, Regulation 3 (b) in GN R 509, Government Gazette of 8

June 2001. See discussion below. 445

J Scanlon et al ‘Water as a Human Right?’ (2004) 51 IUCN Environmental Policy and Law Paper 28.

446

United Nations Committee on Economic, Social and Cultural Rights, General Comment 15, The right to water,

(Twenty-ninth session, 2003), U.N. Doc. E/C.12/2002/11 (2002), reprinted in Compilation of General Comments

and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 105

(2003). Hereafter ‘General Comment 15’.

102

3 (1) Everyone has a right of access to basic water supply and basic sanitation; (2) Every water

services institution must take reasonable measures to realize these rights; (3) Every water

services authority must, in its water services development plan, provide for measures to realize

these rights.447

The WSA aims to provide inter alia ‘the right of access to basic water supply and the right to

basic sanitation necessary to secure sufficient water and an environment not harmful to human

health or well-being’.448

The Act further addresses the social and ecological purposes of water

respectively, setting ‘national standards and norms and standards for tariffs in respect of water

services’ and aiming ‘to promote effective water resource management and conservation’.449

Basic water supply is defined in the WSA as ‘the prescribed minimum standard of water supply

services necessary for the reliable supply of a sufficient quantity and quality of water to

households including informal households, to support life and personal hygiene’.450

The Act

sets the minimum quantity for basic water supply as 25 litres of potable water per person per

day (25 lpd), or 6 kilolitres per household per month, accessible within 200 metres.451

This

minimum quota is to be provided free of charge and is designated as Free Basic Water

(FBW).452

Water services authorities, including municipalities, are charged with a duty ‘to consumers or

potential consumers in its area of jurisdiction to progressively ensure efficient, affordable,

economical and sustainable access to water services’.453

But there are no explicit provisions

within the Act on how ‘access’ is to be achieved.

447

Not only does section 3 of WSA reiterate the Constitutional right of access to sufficient water, it expands it to

include basic sanitation. The approach of including the right to basic sanitation within the right of access to

sufficient water was upheld by the South African High Court in Manqele, discussed below in chapter four. 448

WSA section 2(a). 449

WSA sections 2(b) and 2(j). 450

WSA section 1. 451

Water Services Act 1997, Water Services Regulations, Regulation 3 (b) in GN R 509, Government Gazette of 8

June 2001. The figure of 6 kilolitres (6000 litres) is based on 200 litres per household for each 30-day month. This

assumes no more than 8 people per household (200 litres divided by 8 people = 25 lpd). The adequacy of the

25lpd minimum as well as the assumption of no more than 8 people per household are considered below. 452

This commitment to free basic water was reiterated in the Free Basic Water Programme 2001:

<http://www.dwaf.gov.za/dir_ws/fbw/> (Last accessed 27 July 2016). 453

WSA section 11(1). The application of this duty on municipalities can be considered within the broader context

of the onus on municipalities to provide basic services and realise basic socio-economic rights. Some

commentators question to ability of municipalities to provide such services in the face of severely limited resources

and capacity. Such constraints at the municipal level may significantly impair the state’s ability to respect, protect,

promote and fulfil the right to water as set out in the WSA (and section 27 of the Constitution). See generally A A

Du Plessis Fulfiment of South Africa’s Constitutional Environmental Right in the Local Government Sphere

(Wolf Legal Publishers, 2009).

103

The National Water Act 1998

The National Water Act 36 of 1998 (NWA) specifically aims to address the past racial and

gender discrimination endured under apartheid, in relation to water.454

It is therefore crucial in

implementing the constitutional right to water, as well as Section 24 of the Constitution’s

provision of a right to a healthy environment. The chief aim of the Act is the protection of

South Africa’s water resources and as such the NWA adds ecological aspects of the right to

water to the primarily social aspects stressed in the WSA, and in so doing, clearly links the

environmental right (Section 24) to the right to water.455

Section 2 states the purpose of the Act

‘to ensure that the nation’s water resources are protected, used, developed, conserved, managed

and controlled’,456

taking into account, amongst others, the basic human needs of present and

future generations, equitable water access, social and economic development, public interest,

growing demand for water, ecosystems and biological diversity, as well as international

obligations.457

This echoes the Brundtland Commission’s emphasis on intergenerational and

intra-generational equity as intrinsic to the definition of sustainable development.458

Section 2

can therefore be understood as articulating a vision for sustainable459

use of the country’s water

resources.

Goldblatt and Davies argue that a comprehensive definition of sustainability must extend to

include financial sustainability, which they contend has led to an emphasis on cost recoveries in

the water sector.460

Indeed, Section 2 (d) requires the water use to be ‘efficient’, as well as

454

Section 2 (c) NWA. See also N Faysee ‘Challenges for fruitful participation of smallholders in large-scale water

resource management organisations: Selected case studies in South Africa’ (2004) 43/1Agrekon 52-73. 455

L Kotze ‘Access to Water in South Africa: Constitutional Perspectives from a Developing Country’ (2009) 1

Ymparistojuridiikka, 76.

456

The aims of the NWA are detailed in Section 2: ‘Ensure that the nation’s water resources are protected, used,

developed, conserved, managed and controlled in ways which take into account amongst other factors:

(a) meeting the basic human needs of present and future generations:

(b) promoting equitable access to water;

(c) redressing the results of past racial and gender discrimination;

(d) promoting the efficient, sustainable and beneficial use of water in the public interest;

(e) facilitating social and economic development

(f) providing for growing demand for water use

(g) protecting aquatic and associated ecosystems and their biological diversity;

(h) reducing and preventing pollution and degradation of water resources;

(i) meeting international obligations;

(j) promoting dam safety:

(k) managing floods and droughts.’ 457

See chapter two for more detail on relevant international obligations 458

‘The Brundtland Report’, World Commission on Environment and Development (WCED) Our common

future (Oxford University Press, 1987) 43. 459

See Section 2 (d) NWA. 460

M Goldblatt & G Davies ‘Water, energy and sustainable economic development in South Africa’ (2002) 19/3

Development Southern Africa 369-387, 370.

104

sustainable and beneficial, in the public interest.461

Efficiency here could certainly be interpreted

to include an element of financial sustainability. Such an emphasis is seen most clearly within a

paradigm of water-as-commodity (as defined in chapter one). The practical consequences of

this are discussed in relation to the case of Mazibuko in Chapter Four. But here it is simply

worth noting that if Goldblatt & Davies are correct, and if financial sustainability is pursued

through water governance that requires cost recovery, then the requirement in Section 2 (b) for

‘equitable water access’ may be hampered by the above interpretation of Section 2 (d), where

(would-be) users are unable to pay for the water they need.

The normative significance of the NWA can be seen most clearly by the Act’s reframing of

water as ‘a natural resource that belongs to all people’.462

This stands in stark contrast to the

previous Water Act (1956), which differentiated between private and public water. The

practical application of this paradigm shift is articulated in Section 3, which provides for ‘public

trusteeship of the nation’s water resources’.463

The clear intention of the legislature here is that

water resources belong to all people. According to Pienaar & van der Schyff, reference to

public trusteeship here allows the doctrine of public trust to be used:

‘as the legal tool that encapsulates the state’s fiduciary responsibility towards its people and

bridges the gap between the Roman-Dutch based property concept and the notion that water as

a natural resource belongs to all people’.464

The public trust doctrine represents a novel category in South African law, allowing property

subject to the doctrine (including water in this case) to be neither private, nor State-owned.

Rather the property title is vested in the State as trustee, with the nation (all people) as

beneficiary.465

Clearly such a proprietary model lends itself well to the constitutional provision

that everyone is entitled to access to sufficient water. However, the statistics offered at the

beginning of this chapter remind us that this provision is still not a reality for ‘all people’. The

model also represents a challenge to a traditional concept of property as the object of a

461

See Section 2 (d) NWA. 462

NWA Preamble. 463

NWA Section 3. 464


Development Journal 179-194, 184. Note: The theme of national public trusteeship is also echoed in international

in Peter Sand’s extensive work. See for example P H Sand ‘The Rise of Public Trusteeship in International

Environmental Law’ (2013) 03 Global Trust Working Paper Series. Available at: < http://globaltrust.tau.ac.il/wp-

content/uploads/2013/08/Peter-Sand-WPS-3-13-ISSN.pdf> (Last accessed 27 July 2016); P H Sand ‘Global

Environmental Change and the Nation State: Sovereignty Bounded?’ in G. Winter (ed.) Multilevel Governance of

Global Environmental Change: Perspectives from Science, Sociology and the Law (Cambridge University Press

2006) 519. 465


Development Journal 179-194, 184.

105

relationship between persons and things, to which ownership is paramount.466

As such, van der

Walt argues that public trusteeship acknowledges that ‘property has a public, civic or

“proprietary” aspect to it that transcends individual economic interests and that involves

interdependency and the common obligations that result from it’.467

As such the use of Public

Trust in the NWA illustrates a broader trend within the new constitutional settlement, shifting

from ‘ownership’, to ‘rights in property’.468

Van der Walt’s emphasis on interdependency and common obligations echoes more in-depth

discussion in Chapter Five regarding commons forms of water governance. But it is worth

noting here that despite the apparent shift from ownership, towards rights in property, that

public trusteeship in the NWA suggests, the continued individualistic articulation of rights,

including the Constitutional right to water, seems ill-suited to foster modes of governance that

reflect people’s interconnectness and interreliance, as opposed to their independence and

atomisation.

The confluence of the WSA and NWA illustrates the importance of considering the socio-

economic right to water within an environmental context that recognises and responds to

competing claims for scarce water resources (including domestic, industrial, human, non-

human, present and future). Indeed, the NWA has been described as ‘the ecological

grundnorm to facilitate access to water’469

, setting the parameters within which sufficient water

can be realised. However, the Constitution makes no mention of prioritising either the right of

access to sufficient water above the ‘environment right’ or visa-versa. Similarly the NWA

receives no explicit authority above that of the WSA. Therefore there is no legislative

justification for limiting the social aspect of the right to water within the constraints of the NWA

without acknowledging a corresponding need to view ecological priorities in light of the

Constitutional obligation to provide access to sufficient water to every citizen. The differing

emphases of these two Acts should not encourage incompatible agendas regarding water

resources and water services. The WSA and the NWA must be read in conjunction, with the

aim of facilitating access to sufficient water for all within the context of present and future

ecological sustainability470

. The imperative of providing sufficient water to citizens now, provides

466

J De Waal, I Currie & G Erasmus The Bill of Rights Handbook (3rd

ed, Juta, 2000) 413. 467

AJ van der Walt ‘The Public Aspect of Private Property’ (2004) 19/3 South African Public Law 676, 707. 468

G J Pienaar & E van der Schyff ‘The Reform of Water Rights in South Africa’ (2007) 3/2Law Environment and

Development Journal 179-194, 188. 469

L Kotze ‘Access to Water in South Africa: Constitutional Perspectives from a Developing Country’ (2009) 1

Ymparistojuridiikka 79. 470

Ibid.

106

a pragmatic framework within which ecological aspects of (inter alia) sustainability,

conservation, and biological diversity must be addressed471

.

At a more practical level, the NWA also defines types of water use,472

sets out a hierarchy of

water management institutions, and establishes that the Department of Water Affairs (DWA),

formerly the Department for Water Affairs and Forestry (DWAF), is responsible for all aspects

of the Act’s implementation. Provision is made to establish Catchment Management Agencies

(CMAs) to development strategic plans to meet the NWA objectives in each Water

Management Area (WMA).473

However, it must be noted that since beginning operations, there

have been significant concerns raised about the functioning and competence of CMAs, which

must be addressed if NWA objectives are to be reliably met.474

Together, the constitutional right of access to sufficient water and its main promulgating

legislation (WSA and NWA) have framed the ANC’s goal of realising access to sufficient water

as an individual right. This right should be progressively realised, according to the State’s

available resources and subject to certain qualifications. Measures to ensure economic

imperatives, social development and environmental protection are included in these

instruments and recourse to restitution is available where individual rights are violated

unreasonably. Ultimately lack of fulfilment of the right to water, and of socio-economic rights

generally, may be pursued through litigation. The following chapter will analyse examples of

such litigation in action, and the ways in which the Courts have adjudicated on these rights.

3.4 Wider factors influencing the changing shape of water governance in South Africa

As the above brief history of water governance in South Africa explains, the formal transition to

majority rule began in 1990. At precisely this time, internationally, economic orthodoxy was

coalescing around neo-liberal approaches to resource allocation that prioritised privatisation

and reliance on market forces.475

Broadly, such approaches are summarised by the term

‘globalisation’.476

Nowhere was this more obvious than in the significant shifts that occurred in

471

NWA, Section 2. 472

Section 21 NWA. 473

<http://www.inkomaticma.co.za> (Last accessed 27 July 2016). 474

B Schreiner & B van Koppen ‘Catchment Management Agencies for poverty eradication in South Africa’ (2002)

27/11-22 Journal of the Physics and Chemistry of the Earth 969-976. 475

JE Stiglitz ‘The Post Washington Consensus Consensus’ (The Initiative for Policy Dialogue Working Paper,

2004) 1. See Chapter One, 1.5.5 for further discussion. 476

JA Scholte ‘What is Globalization? The definitional issue – again’ (2002) 109/02 Centre for the Study of

Globalisation and Regionalisation 15.

107

the water sector over the last two decades.477

These shifts include the huge increase in the

privatisation of water services, including by foreign private companies.478

In 2015, ten per cent of

consumers world-wide received water from private companies.479

But the influences of

globalisation, and of neo-liberal economic orthodoxy were not limited to the private sector. In

many jurisdictions, water service provision that remained in the public sector (nationally or

municipally administered) became subject to commercialisation.

3.4.1 Commercialisation

Commercialisation of a municipal service occurs when the service is delivered according to

rules and principles normally reserved for private commercial markets.480

Chief among these is

the principle of commodification, whereby a resource, hitherto seen as a necessity or a public

good, is recast as an asset to be allocated according to a consumer’s willingness and ability to

pay for it.481

The commercialisation of a municipal service like water (and the corresponding

commodification of water) does not necessarily require that water services are provided by the

private sector. What it does require is that all actors involved in the service provision operate

with a private-sector (market-oriented) logic. Therefore a combination of national and

provincial legislation, municipalities, private companies and public-private partnerships can all

contribute to a commercialised water service. Indeed, a commercialised water service, treating

water principally as a commodity, need not have any private sector involvement. But such a

combination of public (national, provincial and municipal) and private actors is what can be

seen emerging in South Africa from the mid 1990s.482

From this point onwards cost-recovery

became imperative for water services at Local Government level. In 1994 a DWAF water and

sanitation White Paper stipulated that ‘where poor communities are not able to afford basic

services, government may subsidize the cost of construction and basic minimum services but

477

J Chaisse & M Polo ‘Globalization of Water Privatization: Ramifications of Investor-State Disputes in the ‘Blue

Gold’ Economy’ (2015) 38/1Boston College International & Comparative Law Review 1-63, 1. 478

D Hall & E Lobina ‘Water Privatisation in Latin America’ (Public Services International Research Unit).

Available at: <http://www.plataformacontralaprivatizaciondelcyii.org/xDOCUMENTOS/TPP/9c-Privatizacion-

David%20holl-Water%20privatisation%20in%20Latin%20America-2002.pdf> (Last accessed 27 July 2016). 479

Ibid. 480

EL Lynk ‘Privatisation, Joint Production and the Comparative Efficiencies of Private and Public Ownership:

The UK Water Industry Case’ (1993) 14/2 Fiscal Studies 98-116, 99. For a more detailed definition of

commercialisation and commodification in relation to water services, see Chapter One at 1.5.5. 481

Ibid. 482

S Flynn & D M Chirwa ‘The Constitutional Implications of Commercializing Water in South Africa’ in D A

McDonald & G Ruiters (eds) The Age of Commodity: Water Privatization in Southern Africa (Earthscan, 2005)

59.

108

not the operating, maintenance or replacement costs’.483

Such an approach would seem to be in

direct conflict with the recognition of water, within the Reconstruction and Development

Programme (RDP), ‘as a public good whose commodification would inherently discriminate

against the majority poor’, which was adopted in the same year (1994).484

Indeed it is precisely

this conflict, between the concept of water as a public good, and as an economic good (or

commodity) that lies at the heart of the problem of realising access to sufficient water within a

water-stressed country, and a globalised, capitalist economy. Yet commercialisation of water

services, and the promotion of a water-as-commodity paradigm continue to be embraced.

While it is certainly possible to commercialise water services without privatising them, private

multinational companies have been involved in water service provision in South Africa (if not to

as great a degree as elsewhere). For instance, in 2001 the French water management company

GDF Suez was awarded a five-year contract for water services in Johannesburg. But publically

owned corporations, run along commercial lines, have become the typical modus operandi for

commercialised water services across the country.485

The general pervading orthodoxy that encouraged moves towards commercialisation, had a

significant influence on the emerging shape of post-apartheid South Africa. As Klein describes,

after the release of Nelson Mandela, the negotiations between the NP and the ANC towards a

transition to majority rule, were conducted on two parallel tracks: one regarding the political

settlement, the other regarding the economic transition.486

While much of the attention focused

on De Klerk and Mandela’s political summits, crucial negotiations around nationalisation of

mineral resources, the status of the Central Bank, debt repayments, market restructuring and

general macro-economic policy, were largely conducted away from public or media scrutiny.487

The economic negotiations were presented as ‘technical’ and ‘administrative’, in contrast to the

more explicitly normative questions around the shape of a new political settlement (including

for instance whether the country should become a federation, and whether minority parties

should have veto powers). The effect of this ‘technocratisation’ of economic concerns was to

embed neo-liberal logic into the so-called administrative decisions that paved the way for how

483 J Dugard ‘Can Human Rights Transcend the Commercialization of Water in South Africa? Soweto’s Legal

Fight for an Equitable Water Policy’ (2010) Review of Radical Political Economics 1-20, 7 (emphasis added). 484

D McKinley ‘The struggle against water privatization in South Africa’ in Reclaiming public water: Achievements,

struggles and visions from around the world (Transnational Institute, 2005) 181-190, 181. 485

For example Johannesburg Water Ltd. delivers water services for the City of Johannesburg. See: J Dugard ‘Can

Human Rights Transcend the Commercialization of Water in South Africa? Soweto’s Legal Fight for an Equitable

Water Policy’ (2010) Review of Radical Political Economics 1-20, 8. 486

N Klein The Shock Doctrine: The rise of disaster capitalism (Penguin, 2007) 199. 487

Ibid.

109

resources (including water) would be governed in the new South Africa. Arguably the

separation of political and economic considerations at this crucial point in the country’s history

has damaged the government’s ability to pursue transformative policies to adequately address

the legacy of vast inequality and poverty. According to Snyman, it was as if the ANC were ‘given

the keys to the house, but not the combination to the safe’.488

The impact of this on post-apartheid water governance was that key legislation drafted after

1994 reflected the imperative of commercialisation. Consequently, alongside efforts towards

achieving greater redistribution and equity, moves towards full cost recovery of water services

can be seen. The NWA was drafted after a wide consultation exercise, which sought

international advice on the ‘state of the art’ for water governance. By the early 1990s there was

considerable consensus from states, NGOs and water sector professionals, around the efficacy

of Integrated Water Resources Management (IWRM) as an appropriate development tool, the

influence of which is visible in the NWA. 489

3.4.2 Integrated Water Resources Management

The central conceptual theme of IWRM is that water resources are finite and interdependent.490

First articulated through the Dublin Principles, IWRM contains four guiding principles, which

promote a holistic approach to hydrological management, emphasising ecological, economic

and social aspects.491

Principle No. 4 is particularly notable, as it reflects the emphasis on

commercialisation of water services discussed above, while also affirming that access to water is

a right:

‘Water has an economic value in all its competing uses and should be recognised as an

economic good. Within this principle it is vital to recognise first the basic right of all human

beings to have access to clean water and sanitation at an affordable price…’492

488

Ibid at 204. 489


management in South Africa’ (2014) International Journal of Water Resources Development 1-16, 6. For an

introduction to IWRM see Chapter One, 1.5.4. 490

International Conference on Water and the Environment: Development Issues for the 21st

Century, 26-31

January 1992 Dublin, Ireland, The Dublin Statement on Water and Sustainable Development: Principle No. 1 –

‘Fresh water is a finite and vulnerable resource, essential to sustain life, development and the environment.’

Principle No. 2 – ‘Water development and management should be based on a participatory approach, involving

users, planners and policy-makers at all levels.’ Principle No. 3 – ‘Women play a central part in the provision,

management and safeguarding of water’. Principle No. 4 – ‘Water has an economic value in all its competing uses

and should be recognised as an economic good. Within this principle it is vital to recognise first the basic right of

all human beings to have access to clean water and sanitation at an affordable price…’ 491

Ibid. 492

Ibid.

110

The inspiration that IWRM has been to water governance in South Africa since 1994 can be

summarised by the above principle. The declaration of a constitutional right to water was an

important response to the colonial and apartheid legacy of inequitable access to water, while

affirming the economic value of water reflected the zeitgeist of commercialisation and

commodification in an increasingly globalised world. But the compatibility, or otherwise of an

individual right of access to sufficient water, with the concept of water as a commodity, remains

a subject of controversy (as discussed in more detail in Chapter Four).

More recently, IWRM has been criticised for lacking specific objectives, and questions have

been asked as to whether its emphasis on all relevant factors should remain procedural, or

extend towards a more substantive agenda,493

and whether IWRM is sufficiently sensitive to the

priorities and context of developing states.494

Partly in response to such concerns, in 2013 the

DWA issued its Second National Water Resource Strategy (NWRS2), which introduced the

concept of developmental water management (DWM) as the central guiding principle for water

governance, rather than IWRM. DWM, it explains:

‘reflects and builds upon [IWRM] principles of equity, environmental sustainability and

efficiency that underpin the National Water Policy and National Water Act… within the context

of a developmental state’.495

According to van Koppen & Schreiner, one important consequence of this conceptual shift is to

restore ‘the vital importance of the state, unlike the tendency in IWRM to put a great deal of

faith in the corporate sector and reduce state capacity and influence’.496

More specifically,

diverging from IWRM, the NWRS2 rejects water management as an end in itself. Instead, it is

reinterpreted as subject to the broader developmental goals of ‘equitable, redistributive and

broad-based social and economic development’.497

As such, the NWRS2 represents an

opportunity to rebalance post-1994 water governance between the priorities of equity, and

commercial imperatives.

The NWA requires the periodic drafting and review of a National Water Resource Strategy.

The NWRS2 is the latest manifestation of this. NWRS2 is a statutory instrument with the role

493

B Mitchell ‘Integrated water resources management, institutional arrangements, and land use planning’ (2005)

37 Environment and Planning 1335-1352. 494


management in South Africa’ (2014) International Journal of Water Resources Development 1-16, 1. 495

Department of Water Affairs. Republic of South Africa (2013). National water resource strategy second edition:

Water for an equitable and sustainable future. Pretoria. 496


management in South Africa’ (2014) International Journal of Water Resources Development 1-16, 2. 497

Ibid at 1.

111

of operationalizing the NWA. It is binding on all authorities and institutions implementing the

NWA.498

Because of this, the priorities and outstanding challenges identified in the NWRS2 are

important to note, because they provide specific detail, lacking in the NWA, as well as revealing

how approaches to water governance, even since 1994, have developed.

Outstanding challenges identified in the NWRS2 include achieving water conservation and

demand management targets, water allocation reform to redress poverty and inequality, and the

decentralisation of water resources management.499

The first National Water Resource Strategy in 2004 (NWRS1) details the objective of the

pricing strategy (as per Section 56 NWA) as follows:

‘The objective of the pricing strategy is to contribute to achieving equity and sustainability in

water matters by promoting financial sustainability and economic efficiency in water use. One

objective is to ensure that the real financial costs of managing water resources and supplying

water, including the cost of capital, are recovered from users. Provisions are, however, made for

a range of subsidies for water users from historically disadvantaged groups to promote equitable

access to the use of water resources.’500

The NWRS2 is perhaps less explicit about the importance of cost recovery. Instead, it focuses

primarily on the financial challenges to the water sector if it is to meet the required demands for

new and refurbished infrastructure. Faced with these challenges, the NWRS2 outlines the

following response:

‘While a portion of the required investment will be provided by the public sector, the private

sector will have to contribute substantially. The public sector alone will not have sufficient funds

to enable full value chain financial management in the sector.’501

498

See: <https://www.dwa.gov.za/nwrs/LinkClick.aspx?fileticket=CIwWyptzLRk%3D&tabid=91&mid=496> (Last



Water for an equitable and sustainable future. Pretoria. Available at:

<https://www.dwa.gov.za/nwrs/LinkClick.aspx?fileticket=xwAxFxjXUlg%3d&tabid=91&mid=496> (Last accessed

27 July 2016). 500

Department of Water Affairs & Forestry. Republic of South Africa (2004). National water resource strategy.

Available at: <https://www.dwa.gov.za/nwrs/LinkClick.aspx?fileticket=xgL9flb2Ru0%3d&tabid=63&mid=412> (Last



Water for an equitable and sustainable future. Pretoria. Available at:

<https://www.dwa.gov.za/nwrs/LinkClick.aspx?fileticket=XDqqXKb3yTA%3d&tabid=91&mid=496> (Last

accessed 27 July 2016).

112

But the NWRS2 does also acknowledge that municipalities are not recovering all of their costs

from their customers, and water boards are thus not recovering all of their costs from these

municipalities. Therefore the aim of cost recovery remains. But how this aim coexists with the

on-going challenge to redress poverty and inequality is not clear. The following extracts from

interviews conducted by the author illustrate the enduring challenge of securing access to

sufficient water, when people lack the ability to pay for it:

‘We get water from a standpipe, here. I used to get it to my house, but they [Durban

Municipality] sawed it off. I don’t know who supplies [the water]. I don’t care, as long as we’ve got

enough… The boys came to connect it again, but it’s not worth it. So I just queue up… Sometimes

no water comes through. But most of the time you get enough. But it takes a long time and I have

to make two journeys if I want two buckets [20 litres each] and there are others waiting’502

------

‘Sometimes I can’t go to the standpipe so I hope I’ve got enough water left from yesterday. If

there’s not much left I cook mieles [corn] or make tea, but don’t sluice the toilet until the next

day. I’ve got to eat first.’503

------

‘Prepaid meters are the problem. The water is on and off. If you haven’t paid you don’t get any.

Nothing.’504


The grave inequalities, segregation and ingrained discrimination that characterised white

political and economic power in the country since 1652 are reflected in the ways that water has

been governed. Understandably, since 1994 significant attempts have been made to begin to

redress inequitable water access, including the adoption of a novel, and explicit Constitutional

right to water. While notable changes in the proprietary status of water have accompanied this

right to water, the right has two weaknesses in particular. First, it is qualified (to be progressively

fulfilled, subject to available resources). Second, it is expressed in individual terms (each

individual has a right to water). As the next chapter explores, both of these aspects of the right

to water have seriously affected the extent to which the Courts have applied the right, and

502


503



113

therefore, the extent to which the right can help realise the transformational goal of securing

access to sufficient water for everyone. Furthermore, arguably, other (potentially competing)

aims for water governance (namely cost recovery, and the inclusion of the private sector) are

impacting on the efficacy of the right to water as a transformational tool.

Archbishop Tutu’s warning (quoted at the beginning of this chapter) reminds us that without

significant advances in people’s living standards, for which access to water is paramount, the

seismic political transition that South Africa has undergone, will count for little. Because of this

it has been imperative to scrutinise how and why water governance has been reconfigured since

1994, and to expose the factors that have influenced this reconfiguration. Affirming a

constitutional right to water, and introducing new normative understandings of water in relation

to the public trust doctrine, can be seen as deliberate and bold attempts to remedy past water

injustices. But general acceptance of a commercialised approach to water services may

represent an insidious development, which ultimately inhibits the aim of achieving equitable

access to water. Indeed, the spectre of commercialisation is visible behind some of the seminal

decisions of the Constitutional Court, considered in the next chapter.

Charting the history of water governance in South Africa has allowed connections to be made

between general developments in the country’s economic, political, social and legal spheres,

and specific reconfigurations in water law and water access. In particular, economic demands,

first for land, then for labour, have clearly influenced water governance (as well as other areas of

law) at key historical points. Undoubtedly, the pressures of international economic sanctions

(and of international capitalism generally) were also a significant catalyst for the political

transition to majority rule. Furthermore, the changes to water governance post-1994 reflect the

emerging international consensus around the commercialisation of the water sector. The

Marxian insight that the superstructure (including a nation’s political, legal and cultural

institutions and norms) is determined by the demands of the economy, is useful here, in order

to understand the potentially determining effect that economic exigencies have on other

institutional and relational configurations.

In the preface to ‘A Contribution to the Critique of Political Economy’, Marx writes:

‘In the social production of their life, men enter into definite relations that are indispensable

and independent of their will, relations of production which correspond to a definite stage of

development of their material productive forces. The sum total of these relations of production

constitutes the economic structure of society, the real foundation, on which rises a legal and

political superstructure and to which correspond definite forms of social consciousness. The

114

mode of production of material life conditions the social, political and intellectual life process in

general. It is not the consciousness of men that determines their being, but, on the contrary,

their social being that determines their consciousness.’505

Such an analysis is applied by Saul & Bond in order to explain how ‘racial capitalism’506

(as

expressed through the formal structures of apartheid) thrived in the 1960s and 70s, but

disintegrated in the 1980s and ‘90s. Despite instances of international condemnation,

particularly regarding the Sharpeville massacre in 1960, apartheid created the conditions for a

decade of uninterrupted economic boom, with growth rates between six and eight per cent per

annum. Mining and the mineral sector was the principal growth industry, supplying a buoyant

international market. The profitability of the mineral sector was greatly assisted by the

maintenance of low wages for black workers, and by the suppression of organised opposition

(the ANC, Communist Party, and PAC were all banned in 1960507

). In short, during this time

‘the alliance between racism and capitalism still held’.508

By the 1980s the importance of the

mineral sector was beginning to decline. At the same time, a rapidly changing capitalist system

(emerging in the form of globalisation) began to require greater skilled labour, as well as a wider

consumer market. In the long term, neither of these would prove compatible with the ‘super-

exploitation’509

of the black population. So the slow demise of apartheid can be attributed, at

least in part, to changes in the relations of production, which globalisation has heralded.

However, we should be wary of reducing such an analysis of the development of water

governance in South Africa to a simplistic view of economic determinism, which ignores the

myriad other factors at play. Political aims (micro-political, through to geo-political),

theological/mythological narratives, eugenics, immigration, industrialisation, and urbanisation

can all be identified in the historical developments outlined above. While some of these are

clearly influenced by economic demands, the connection between others of these and the

economy is more tenuous. Indeed, the notion of determination, and more forcefully, of

determinism, come from theological ideas of predestination, and fate that minimize the role of

505

K Marx (1968b) ‘Preface to a contribution to the critique of political economy’ in Karl Marx & Frederick Engels:

Their selected works (New York: International Publishers, 1968), 181-185, 183.

506

J Saul & P Bond South Africa, The Present as History, from Mrs Ples to Mandela & Marikana (Jacana, 2014)

60. 507


ed, Blackwell Publishers, 2000) x. 508


56. 509

Ibid 60.

115

human agency.510

In applying such notions, the very human story of this period of history (and

of any other) risks being lost to an overly didactic account of the results of the demands of the

economy over time. Indeed, while emphasising the close relations between economic needs

and socio-political structures, Saul & Bond ultimately conclude that ‘the renewed political

challenge from the dominated black population would prove to be the system’s real Achilles

heel’.511

Regarding the formal transition to majority rule, and the concurrent drafting of a new

Constitution, Barendt’s reflections on ‘constitutionalism’ are pertinent. For Barendt the central

insight that constitutionalism offers is that:

‘the concentration of power in the hands of any institution of government is dangerous and that

it should so far as practicable be dispersed’.512

While generally this restates the importance of the separation of powers, in the context of the

1996 South African Constitution this is particularly significant to appreciating the breadth of

rights included therein.

By explicitly including individual rights to water, food, housing, healthcare, education and social

security, amongst others, the ANC (and more broadly CODESA) were signalling that such

rights would no longer be subject to government power alone (and therefore, that exclusion of

people from the necessities that these rights represent, would no longer be within the purview

of the government alone). Rather, elevated to constitutional rights, within a hierarchy of laws,

and thereby insulated from undue government interference, realisation of these rights would be

pursued by the Constitutional Court, and they would therefore enjoy a greater measure of

protection than if such rights had only been expressed through legislation (characterised by

Ridley as ‘ordinary legislation’).513

In this context, enshrining a right to water in the new Constitution can be seen to symbolise not

just an attempt to move towards more equitable water governance, but also a faith in

constitutionalism to drive social transformation. It is such a faith (and arguably the subsequent

510

R Williams ‘Base and Superstructure in Marxist Cultural Theory’ in MG Durham & DM Kellner (eds) Media

and Cultural Studies (2nd

ed, Blackwell Publishing, 2006) 131. 511


60. 512

E Barendt ‘Is there a United Kingdom Constitution?’ (1997) 17 Oxford Journal of Legal Studies 137-145, 141. 513

FF Ridley ‘There is no British Constitution: A dangerous case of the Emperor’s Clothes’ (1988) Parliamentary

Affairs 340-361, 352.

116

loss of this faith) that is discernable in the seminal early case decisions of the Constitutional

Court, considered below.

Identifying changes to the ways in which water has been governed must not be allowed to

obscure the continuity that these changes have ensured, until the advent of majority rule:

namely the entrenchment of profound inequities through racial hierarchy, exploitation, and

segregation. But it is also important to recognise recurring themes. The return of the concept of

dominus fluminus, in modified form, within the public trust doctrine in the NWA, has

encouraged the state to (re)engage with its role as custodian of water, in part through

establishing CMAs, and most recently through the NWRS2.

Moreover, where certain concepts have been resurrected for positive reasons, it raises the

possibility that others could also be rediscovered and profitably applied. In particular, the

Roman precept of water as res extra commercium, and African customary law’s rejection of

water as private property could find themselves rearticulated (and reanimated) within a water-as-

commons paradigm (discussed in Chapter Five).

117

4 Socio-economic rights in the

Constitutional Court

ZY: Because our whole jurisprudence is that quota is not the way you decide these things, we

are not on minimum quotas. We are saying everybody must act reasonably and reasonableness

depends on the circumstances, and the situation. We are for flexibility; we are not for

mechanical determination.

NC: No, but surely the notion of reasonableness becomes more complicated when it’s in

relation to progressive realization, because I suggest what’s reasonable one day isn’t necessarily

reasonable the next.

ZY: Of course it does. And that is the beauty of the test. For me that’s not a problem. That is

the wonder of it.

Author’s interview with Justice Zak Yacoob514

‘The Court had a historic opportunity to give meaningful, lived content to the right to water. It is

to their, and our country’s, discredit that they have miserably failed’

Public Statement, Coalition Against Water Privatisation515

4.1 Introduction

Transition to majority rule in 1994, and the concomitant creation of a new and wide-ranging

Constitution, has been discussed in the previous chapter. Having stated that a right of access to

sufficient water exists, and having considered why such a right is included in the Constitution, it

is important to reflect on the ways that this right has been interpreted, applied and adjudicated

on to-date, and what potential there may be for applying this right in the future.

514


Available at: < http://abahlali.org/node/5876/> (Last accessed 27 July 2016).

118

It has already been established that the right of access to sufficient water is one component of a

set of socio-economic rights, within a comprehensive Bill of Right, pertaining to civil, political,

environmental, religious, economic, social and cultural aspects of life and of citizen-state

interaction. It is asserted that adjudication on the right to water should not be analysed in

isolation from adjudication on other Constitutional rights. Therefore, the principal purpose of

this chapter is to analyse generally, how the rights within the new Constitution (focussing

principally, but not exclusively, on the socio-economic rights) have been interpreted and

applied by the Courts (most notably by the Constitutional Court), and what the consequences

of such adjudication have been for the fulfilment of those Constitutional rights. In particular,

appraising the court’s interactions with a spectrum of Constitutional rights, allows for a realistic

evaluation of the (potential) effectiveness of the constitutional right to water, as a tool to realise

access to sufficient water for everyone in the country. But, as would be expected, the Court’s

adjudication on the right to water will be given specific attention.

Furthermore, the central assumption of human rights lawyers – that designating a particular

claim (to life, to privacy, or to water for instance) as a right strengthens the weight of such a

claim, and thereby improves the chances of that claim being met – is challenged in light of the

Court’s general approach to socio-economic rights adjudication to-date.

4.1.1 Chapter outline

The chapter begins by considering different perspectives on the legitimate interpretative and

adjudicative roles of the judiciary. While South African jurisprudence has developed a distinct

perspective, theory and experience from other jurisdictions is also drawn upon here, in order to

provide some theoretical foundations, on top of which can be placed the ensuing critique of the

Constitutional Court’s judgments.

Next, within the South African context, the chapter examines the relationship between the

government and the judiciary, particularly regarding the public law principle of separation of

powers, and a reimagined ethos of constitutionalism. The institution of the Constitutional Court

is introduced, and a small number of seminal cases relating to civil and political rights, are

analysed, before undertaking a detailed examination of the most important cases heard by the

Court since 1997 that concern socio-economic rights, including the right of access to sufficient

water. The aim of such a case examination is to identify and reflect upon the Court’s interaction

with socio-economic rights in the period since the adoption of the new Constitution. In so

119

doing, it is argued that a more or less coherent jurisprudence can be identified (with important

ramifications on attempts to build effective approaches to water governance).

The practical limitations of this jurisprudential approach are then critiqued in light of the

different perspectives on the legitimate role of the judiciary (identified at 4.2), and in relation to

the expansive content of the Constitution’s socio-economic rights, as well as the serious and

enduring need to address poverty in the country. It is argued that the Constitutional Court

currently finds itself in a liminal space between an initial, strong impetus to effect substantial

social transformation through the promulgation of socio-economic rights, and a more

managerial role of affirming the progressive realisation of such rights only to the extent that

constitutional deference, judicial restraint, and limited resources allow. The resulting critique of

the legitimacy of the Court’s (allegedly) changing role, offers an original contribution to the

literature on socio-economic rights and the Constitutional Court in South Africa, by arguing

that the Court’s current role is necessarily located at the threshold between a naïve form of

‘transformative constitutionalism’,516

and a more restrained, if constitutionally cogent ‘judicial

managerialism’.517

Read in such a way, the judgments of significant socio-economic rights cases can be

reconsidered in ways that reveal the limits of rights-based conceptions of (water) governance,

(referred to as the limits of ‘rights talk’) and the potential, and necessity, for new/old modes of

governance to (re)emerge. This original conceptual lens is referred to as ‘liminal

constitutionalism’.518

For the sake of brevity, rights pertaining to social and economic entitlements, including the

provision of basic material necessities, are referred to as ‘socio-economic rights’. This conforms

to the usual designation in the wider literature and practitioners’ materials.519

Within the Bill of

Rights,520

the Constitution protects the following socio-economic rights: right to a healthy

environment;521

right of access to land and security of tenure;522

right to adequate housing and

516

E Christiansen ‘Transformative Constitutionalism in South Africa: Creative Uses of Constitutional Court

Authority to Advance Substantive Justice’ (2010) 13 Journal of Gender, Race & Justice 575-614, 576. 517

N Cooper & D French ‘The Right to Water in South Africa: Constitutional Managerialism and a Call for

Pluralism’ in E Blanco & J Razzaque (eds) Natural Resources and the Green Economy: Redefining the Challenges

for People, States and Corporations (Martinus Nijhoff, 2012 ) 111, 131.

518

This term was coined by the author in the draft version of the following paper, jointly authored with L J Kotze:

‘Liminal Constitutionalism: Transformation, Transition, and Ambiguity in the Developmental Role of the Courts

in South Africa’. To be submitted to the International Journal of Constitutional Law, Autumn 2016. 519

See D McQuoid-Mason (ed) Street Law South Africa: Practical Law for South Africans (2nd

Ed, Juta Law Co,

2004) 299-303. 520

See Chapter Two of the Constitution. 521

Section 24 of the Constitution.

120

protection against unlawful evictions and demolitions;523

rights of access to healthcare services,

sufficient food and water, social security, including social assistance, as well as the right not to be

refused emergency medical treatment;524

children’s rights to basic nutrition, shelter, basic

healthcare services and social services;525

right to education;526

and prisoners’ rights to adequate

accommodation, nutrition, reading materials and medical treatment.527

4.2 The legitimate role of the judiciary

While the connection between this section, and the right to water, may not be immediately

obvious, the themes and theories arising from a general consideration of the legitimate role of

the courts, will inform the case studies below, facilitating a more critical inquiry.

The scrutinising of government action, and the interpretation of legislation, are two crucial

functions of the judiciary, which are integral to the operation of public (or constitutional) law. In

executing both functions, the judiciary must determine where the legitimate limits of each

function lies, and which questions that are raised are appropriate or inappropriate for judicial

resolution. In making such determinations the judiciary exercises ‘judicial restraint’.528

That judges should exercise judicial restraint is not in question. Without a measure of restraint,

the judiciary’s encroachment onto legislative or executive territory would become

commonplace, and meaningful distinctions between the separate arms of the state would

disappear. But it is the degree of restraint that should be exercised, and the reasons for this, that

is the subject of recurrent contention, attracting a broad spectrum of opinion. For example, in

the English case of Huang v Secretary of State for the Home Department529

various models for a

doctrine of judicial restraint were offered, including the acknowledgment of a margin of

discretion on the part of the government (which echoes the ECtHR’s use of the ‘margin of

appreciation’), due deference, the principle/policy distinction, and relative institutional

competence (explained below). But such attempts to clarify a specific doctrine of judicial

restraint have been rejected by some judges and jurists, for a variety of reasons. The eminent

British judge, Lord Bingham advocated that the appropriate degree of restraint must be

decided on in the context of each particular case. Moreover, this decision was part of:

522

Section 25. 523

Section 26. 524

Section 27. 525

Section 28. 526

Section 29. 527

Section 35. 528

J A King ‘Institutional Approaches to Judicial Restraint’ (2008) 28/3 Oxford Journal of Legal Studies 409-441,

410. 529

[2007] UKHL 11 [2007] 2 AC 167.

121

‘the performance of the ordinary judicial task of weighing up competing considerations on each

side and according appropriate weight to the judgment of a person with responsibility for a given

subject matter and access to special sources of knowledge and advice’.530

Rejection of a doctrinal approach, in favour of a ‘case-by-case’ view is not without its problems

though. Without an established standard for judicial restraint, it is difficult to determine how

much weight is appropriate to give to a person with ‘special sources of knowledge’ for instance.

While Bingham may not have acknowledged the underlying set of considerations operating to

determine the appropriate degree of restraint, such considerations will exist nevertheless.531

In contrast, a priori models of judicial restraint provide a degree of predictability. They also

make explicit the considerations that condition judicial restraint, rather than leaving observers

to guess. Traditionally two main models for judicial restraint have been used, examples of

which exist across common law jurisdictions.532

The first seeks to determine appropriate judicial

restraint by recourse to the distinction between law and politics. This distinction clearly implies

that law is the province of the Courts, while politics belongs to the legislature and executive.

Therefore questions of law can legitimately be addressed by the judiciary. However, while the

clarity of such a binary distinction may be attractive, it is sometimes far from simple to

determine whether the instant question is a legal or a political one.533

Similar problems are encountered when a distinction between principle and policy is used.

This model implies that principles (as defined below) fall within the purview of the Courts,

while the executive decides policies. Ronald Dworkin’s definition of both ‘policy’ and

‘principle’ is extremely pertinent to the central focus of this chapter, and the overarching focus

of the thesis:

‘A ‘policy’ [is] that kind of standard that sets out a goal to be reached, generally an improvement

in some economic, political or social feature of the community… A ‘principle’ [is] a standard

that is to be observed, not because it will advance an economic, political, or social situation

530

Ibid at paragraph 16. 531


412. 532

Note: King identifies a third model, using the distinction of justicability/non-justicability. However, in the

author’s opinion, there is sufficient overlap between this model and to two discussed above, to warrant omitting

explicit discussion of this third model, since the factors determining an issue as being non-justicable largely relate

to its political/(non)legal/policy aspects. See: J A King ‘Institutional Approaches to Judicial Restraint’ (2008) 28/3

Oxford Journal of Legal Studies 409-441, 420-422. 533

See for instance: R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC

513 (HL) 544 (Lord Keith, dissenting).

122

seemed desirable, but because it is a requirement of justice or fairness or some other dimension

of morality.’534

The socio-economic rights within the South African Constitution, and the right of access to

sufficient water in particular, reflect features of both policy and principle. The Constitutional

requirement for progressive fulfilment echoes Dworkin’s reference to setting a goal to be

reached through ‘improvement’, while the subject matter of the right to water clearly has

economic, political and social features to it (as discussed in Chapter Three). But, as will be

argued forcefully later in this chapter and in Chapter Five, the right to water also has a strong

moral dimension, the fulfilment of which is a question of justice. Therefore it would not be a

simple task to immediately define a question engaging the right to water, as either a matter of

policy, or of principle. This illustrates the wider definitional problems encountered with this

model.

Each model can be criticised not just for the difficulties affecting its practical application, but

also for its false pretence to objectivity:

‘a belief in the capacity of judges to deduce objective and apolitical legal answers from abstract

legal rules… without recourse to policy considerations.’535

Such a questionable claim to objectivity in legal scholarship, is critiqued in Chapter Five, in

relation to the need for more fluid and responsive forms of water governance. But limited here

to discussion of the legitimate role of the judiciary, it has been observed that the pursuit of

rational objectivity can create ‘mechanical jurisprudence’, whereby the consequences of judicial

decisions are held as being of less importance than the decision’s ‘correctness’.536

This is

perhaps an apt description of the judgment in Mazibuko and Others v City of Johannesburg

(discussed below).

Responding to the problems associated with a wholesale rejection of a doctrinal approach to

judicial restraint, as well to practical and normative weaknesses of more formalist models,

detailed above, an ‘institutional approach’ to judicial restraint has been advocated. This

approach asks questions about relative institutional competence: Essentially, which institution is

the best among the available alternatives for resolving a given problem?537

Posing such a

534

R Dworkin Taking Rights Seriously (Harvard University Press, 1978) at 22. 535

J A King ‘Institutional Approaches to Judicial Restraint’ (2008) Oxford Journal of Legal Studies 28/3, 409-441,

414. 536

R Pound ‘Mechanical Jurisprudence’ (1908) 8 Columbia Law Review 605-623. 537


423.

123

question opens up what Lester & Pannick call a ‘discretionary area of judgment’.538

Arguably,

within this area, judicial restraint can be exercised in more responsive ways than doctrinal

prescription may allow for, without reverting to an entirely case-by-case approach.

Mureinik has identified three key features of this institutional approach, which together might

help plot the boundary of such a discretionary area of judgment.539

First, a ‘culture of

justification’540

should encourage judges to take an expansive view of what is reviewable and

justiciable. Second, significant weight should be given to views of other decision-makers. Third -

acknowledging judicial concerns about trespassing beyond the limits of their institutional role -

the degree of restraint shown by the judiciary should be explained with reference to relevant

principles, in order to make explicit when and why restraint is required.541

As will become apparent from the forthcoming case discussion, issues of judicial restraint (or

judicial deference) in the South African context, continue to be raised in relation to separation

of powers, to the distinction between law and politics, policy and principle. But an institutional

approach to judicial restraint offers a useful perspective from which decisions can be more

effectively analysed. The idea of ‘liminal constitutionalism’ (briefly introduced at 4.1, and

elaborated on below) reflects some of the themes of an institutional approach to judicial

restraint, tailored to the specific constitutional and judicial circumstances of South Africa. But

first of all the Constitutional Court must be introduced, and the environment in which it

operates must be explained.

4.3 Establishing a new constitutional ethos in South Africa

After the efforts of CODESA and the agreement of an interim Constitution, the final

Constitution of the Republic of South Africa was adopted on the 10th

December 1996. The

signing event was carefully orchestrated to communicate that the ‘Rainbow Nation’ was

deliberately leaving behind its troubled past, and embracing a new and better future. Standing

in Sharpeville, Gauteng, at the site where, in 1960, police shot and killed 69 peaceful protestors,

former President Mandela inaugurated this new constitutional chapter with the following words:

‘Today we cross a critical threshold. Let us now, drawing from the unity, which we have forged,

together grasp the opportunities and realise the vision enshrined in the Constitution. Let us give

538

A Lester & D Pannick (eds) Human Rights: Law and Practice (2nd

Ed.Lexis-Nexis, 2004). 539

D Dyzenhaus ‘Law as Justification: Etienne Mureinik’s Conception of Legal Culture’ (1998) 14 South African

Journal of Human Rights 11-37. 540

Ibid. 541


423-424.

124

practical recognition to the injustices of the past, by building a future based on equality and

social justice…’542

A commitment to the transformational role that the new Constitution should play is clearly

apparent in Mandela’s exhortation. It is also reflected in the Preamble to the Constitution

itself, which recognizes the need to:

‘Heal the divisions of the past and establish a society based on democratic values, social justice

and fundamental human rights; [to] [L]ay the foundations for a democratic and open society in

which government is based on the will of the people and every citizen is equally protected by

law; [and to] [I]mprove the quality of life of all citizens and free the potential of each person.’543

Such faith in the transformative ethos of the Constitution - as the site where poverty and

extreme inequality should be confronted - is firmly rooted in the notion of ‘transformative

constitutionalism’, which in South Africa has a distinct human rights dimension to it.544

Indeed,

it is essential to appreciate the importance ascribed to the Constitution, and to the

Constitutional Court, within the collective psyche of the nation. Particularly in the early years of

the democratic era, the Constitution and Court’s commitment to meaningful and significant

socio-economic transformation was perceived to be central to the success of the new South

Africa:

‘The new constitution obliges us to strive to improve the quality of life of the people. In this

sense our national consensus recognises that there is nothing else that can justify the existence of

government but to redress the centuries of unspeakable privations, by striving to eliminate

poverty, illiteracy, homelessness and disease…’545

Put simply, the Constitution (with its accompanying Court) was heralded as integral to

eradicating poverty and to reforming the experiences of the majority of the country’s

disenfranchised population.546

Central to this transformed vision would be access to water and

542

Speech delivered by the former President Mandela at the signing of the Constitution of the Republic of South

Africa, 10 December 1996. Available at: <http://www.anc.org.za/show.php?id=3502> (Last accessed 27 July 2016). 543

Preamble to the Constitution of the Republic of South Africa, 1996. Approved by the Constitutional Court (CC)

December 1996, took effect on 4 February 1997. 544

See E Christiansen ‘Transformative Constitutionalism in South Africa: Creative Uses of Constitutional Court

Authority to Advance Substantive Justice’ (2010) 13 Journal of Gender, Race & Justice 575-614, 576; K Klare

‘Legal Culture and Transformative Constitutionalism’ 1998 14 SAJHR 146-188, 153. 545

Address by the former President Mandela to the Constitutional Assembly on the occasion of the adoption of the

Constitution of the Republic of South Africa, Cape Town, 8 May 1996. 546

See generally: P Bond Unsustainable South Africa: Environment, Development and Social Protest (University of

Natal Press, 2002); Fuo O ‘Local government indigent policies in the pursuit of social justice in South Africa

through the lenses of Fraser’ (2014) Stell LR 187-189; Van der Walt ‘A South African Reading of Frank

Michelman's Theory of Social Justice’ in Botha et al Rights and Democracy 163-164. In South Africa, government

considers the following as basic needs: sufficient water, basic sanitation, refuse removal in denser settlements,

125

sanitation, to health care and to housing, as evidenced by the judgments of the Constitutional

Court considered below.

4.4 Role and structure of the Constitutional Court

The Constitutional Court is South Africa’s highest court for constitutional matters. It became

operative in 1994, under the Interim Constitution.547

The Court’s jurisdiction is limited to

constitutional matters, including decisions that relate to constitutional matters. In respect of all

other matters, the Supreme Court of Appeal is the highest court, and is able to hear and decide

appeals on any High Court decision.548

The court structure is established in Chapter Eight of the 1996 Constitution, which states that

all courts in the country are ‘independent, and subject only to the Constitution and the law,

which they must apply impartially and without fear, favour or prejudice’.549

Judicial

independence is crucial to the legitimacy and impartiality of any court system, including that of

a country’s Constitutional Court. It has been described by Chief Justice Larmer of the Supreme

Court of Canada, as ‘the lifeblood of constitutionalism in democratic societies.’550

To ensure

such independence, Section 165 (3) states that ‘no person or organ of the state may interfere

with the functioning of the courts’551

, and Section 165 (4) requires organs of the state to assist

and ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts,

through legislative and other means.552

The Constitutional Court is comprised of the Chief Justice of South Africa, the Deputy Chief

Justice, and nine other judges.553

The President makes judicial appointments, from a shortlist of

candidates. Candidates are recommended by the Judicial Service Commission, which ensures

that they are sufficiently competent and appropriate for judicial office, and that the Judiciary

reflects the country’s gender and racial composition.554

Judges are usually appointed to serve

environmental health, basic energy, healthcare, housing, food and clothing. See DPLG (now CoGTA) Guidelines

for the Implementation of Municipal Indigent Policies (2006) 17.

547

See <http://www.constitutionalcourt.org.za/site/thecourt/history.htm> (Last accessed 27 July 2016). 548

See <http://www.constitutionalcourt.org.za/site/thecourt/role.htm> (Last accessed 27 July 2016). 549


Beauregard v Canada [1986] 2 SCR 56 at 70. 551

Section 165 (3) of the Constitution. 552



The Judicial Service Commission is provided for by Section 178 of the Constitution. Note that this process of

judicial appointments represents a significant improvement in terms of transparency than was the case before

1994. Previously the President would appoint based on undisclosed criteria.

126

twelve-year terms.555

Matters before the Constitutional Court must be heard by at least eight

judges.556

Section 167 (3) explains the role of the Court.557

Furthermore, Section 167 (4) confirms the

Court’s exclusive jurisdiction regarding the powers and constitutional status of the branches of

government.558

Regarding the role of the Court specifically in relation to the Constitution’s Bill

of Rights, Section 39 (2) requires that ‘when interpreting any legislation, and when developing

the common law or customary law, every court, tribunal or forum must promote the spirit,

purport and objects of the Bill of Rights.’ This obligation is equally applicable to the

Constitutional Court. Indeed, such is the importance of this obligation that the Constitutional

Court has held itself to be ‘under a general duty to develop the common law when it deviates

from the objectives of the country's Bill of Rights’.559

4.4.1 Content and scope of the Bill of Rights

As discussed in the previous chapter (at 3.3.2), Chapter Two of the Constitution, the Bill of

Rights, contains a host of rights that encompass civil, political, economic, social, and cultural

areas of life and activity. The State is obliged to ‘respect, protect, promote and fulfill’ each of

the rights in the Bill of Rights560

, which requires variously negative and positive duties. The rights

are to be realised progressively, within the available resources of the State.561

Yet socio-economic

rights (including the right of access to sufficient water, housing, food, health care, amongst

others) are qualified,562

albeit that the rights of children are less so.563

All rights may be limited

555

M S Kende ‘Enforcing the South African Constitution: The Fight for Judicial Independence and Separation of

Powers’ Transnational Law & Contemporary Problems (2014) 23/35, 34-49, at 37. 556

Section 167 (2) of the Constitution.

557

Section 167 (3) of the Constitution: Sub-s (3) substituted by s. 3 of the Constitution Seventeenth Amendment Act

of 2012.The Constitutional Court (a) is the highest court of the Republic; (b) may decide— (i) constitutional

matters; and (ii) any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter

raises an arguable point of law of general public importance which ought to be considered by that Court, and (c)

makes the final decision whether a matter is within its jurisdiction.

558

Section 167 (4) of the Constitution: ‘Only the Constitutional Court may— (a) decide disputes between organs of

state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those

organs of state; (b) decide on the constitutionality of any parliamentary or provincial Bill, but may do so only in the

circumstances anticipated in section 79 or 121; (c) decide applications envisaged in section 80 or 122; (d) decide

on the constitutionality of any amendment to the Constitution; (e) decide that Parliament or the President has

failed to fulfil a constitutional obligation; or (f) certify a provincial constitution in terms of section 144.’

559

Carmichele v Minister of Safety and Security (CCT 48/00) [2001] ZACC 22. 560


See section 27 of the Constitution. 562

See section 36 of the Constitution: General limitation clause.

127

only in terms of the law of general application, to the extent that the limitation is reasonable and

justifiable in an open and democratic society based on human dignity, equality and freedom.564

International law must be taken into account and foreign law may be taken into account when

interpreting the Bill of Rights565

. So the interpretation and realisation of the rights contained

within the Bill of Rights is a significant aspect of the Constitutional Court’s role.

4.4.2 A new parliamentary model

One of the biggest changes to the constitutional landscape of South Africa after 1994 was the

shift from Parliamentary Sovereignty to the supremacy of the (interim, then the new)

Constitution. To this end, Section 2 of the 1996 Constitution affirms the Constitution as the

highest law in the country, binding upon everyone.566

As well as the inclusion of a

comprehensive Bill of Rights, the 1996 Constitution provides for a new parliamentary model.

Replacing the previous tricameral parliament, sanctioned under the 1983 Constitution,567

a

bicameral model was adopted, consisting of a National Assembly, and Council of Provinces.

This provides that provincial interests are represented alongside national ones, and that both

chambers share legislative powers.568

Furthermore, this model provides for some separation of

powers (though to a lesser extent than in other bicameral parliaments, including the United

States Congress for instance).569

Within this bicameral model, the ANC has remained the dominant party since first gaining

power in 1994, retaining between 62.1% and 69.7% of seats in the National Assembly, over five

election terms.570

The relevance of this to discussion of the role and structure of the

Constitutional Court is twofold. First, the Constitution provides that constitutional amendments

may be made with the support of two thirds of parliament. Therefore, the unrivalled

dominance of one party could create the conditions necessary for significant amendments to be

made at the behest of only that party. Second, many commentators have expressed concern for

563

See section 28(1)(c) of the Constitution. No mention is made in this section of ‘available resources’ or

‘progressive realisation’. The only limitations on the rights in this section are therefore those generally applicable in

section 36 (Limitation of Rights). 564

section 36. 565

See section 39 (b) and (c) of the Constitution respectively. 566


See Part IV, Republic of South Africa Constitution Act, 1983:

<https://en.wikisource.org/wiki/Republic_of_South_Africa_Constitution_Act,_1983> (Last accessed 27 July 2016). 568

H Botha ‘Comparative Constitutional Law in the Classroom: A South African Perspective’ (2009) 28 Penn State

International Law Review 531, 535-536. 569

See generally B Ackerman ‘The New Separation of Powers’ (2000) 113 Harvard Law Review 633-725. 570

<http://www.electionresources.org/za/provinces.php?election=2009&province=ZA> (Last accessed 27 July 2016).

128

the fragility of South Africa’s democracy, in the face of ANC dominance and intransigence.571

It

is therefore important to consider how the ANC-dominated executive and parliament have

related to the Constitutional Court.

4.5 The relationship between the Executive, the Legislature, and the Constitutional Court

Because the ANC has remained in power since 1994, consistently commanding a large majority

in Parliament, it is the relationship between the government (the executive, under the

leadership of the President), and the Constitutional Court, that is of particular interest here.

While opposition parties within Parliament have been instrumental in directing the Court’s

attention towards instances of government conduct, the ability of parties other than the ANC to

shape legislation is limited, due to the clear majority that the ANC government holds.

Since the Constitutional Court began to operate in 1994, there have been four Presidents:

Nelson Mandela, Thabo Mbeki, Kgaleme Motlanthe, and Jacob Zuma. Motlanthe’s brief

presidency (from September 2008 to May 2009) was occasioned by Mbeki’s resignation. Once

the ANC won the 2009 general election, Zuma replaced Motlanthe as the country’s President,

having already won presidency of the ANC party. The following section is therefore split in to

three subsections, in order to allow consideration of the Constitutional Court’s relationship with

the government under each of the Presidents (excluding Motlanthe).

4.5.1 Mandela

From its inception the Constitutional Court sought to confirm its role as an independent arbiter

of the Constitution, insulated from the demands of the public and government. The first case

heard by the Court is instructive in this regard. S v Makwanyane 1995572

considered the

sentence of execution for convicted murderers.573

The case required the Court to decide

whether capital punishment was consistent with the right to life, and the right to human dignity,

entrenched in the Bill of Rights.574

571

571


Powers’ (2014) 23/35Transnational Law & Contemporary Problems, 34-49, 38; S Choudhry ‘‘He Had a Mandate’:

The South African Constitutional Court and the African National Congress in a Dominant Party Democracy’

(2010) 2 Constitutional Court Review 2. 572

S v Makwanyane 1995 (3) SA 391 (CC). 573

Capital Punishment was provided for in Section 77 (1) (a) of the Criminal Procedure Act 1977 (Act 51 of 1977). 574

Sections 9 and 10 of the Interim Constitution 1993. Available at:

<http://www.gov.za/documents/constitution/constitution-republic-south-africa-act-200-1993> (Last accessed 27 July

2016). Note: Both rights appear in the Bill of Rights of the 1996 Constitution (Section 10, human dignity; Section

11 right to life). But the case of S v Makwanyane predates the coming in to force of the 1996 Constitution.

129

The position of the State regarding this question was complex. Capital punishment had not

been settled during the constitutional negotiations, although the then President Mandela and

other senior ANC figures were in favour of abolishing it.575

The South African government’s

counsel in the case, George Bizos, conceded that the death penalty should be deemed

unconstitutional.576

However, the State’s interest in the case was represented not by Bizos, but

by the Attorney General of the Witswatersrand (subsequently this office would be renamed as

the Director of Public Prosecutions), who argued, independently, to retain the option of capital

punishment for certain situations:

‘The death sentence meets the sentencing requirements for extreme cases of murder more

effectively than any other sentence can do. It has a greater deterrent effect than life

imprisonment; it ensures that the worst murderers will not endanger the lives of prisoners and

warders who would be at risk if the "worst of the murderers" were to be imprisoned and not

executed; and it also meets the need for retribution which is demanded by society as a response

to the high level of crime. In the circumstances presently prevailing in the country, it is therefore

a necessary component of the criminal justice system.’577

Furthermore, the Attorney General asserted that because the issue of capital punishment had

not been addressed in the interim Constitution, this implied that the issue should be decided

on by Parliament (and by implication, not by the Court). It was widely agreed that the Attorney

General’s position closely reflected the majority public opinion in the country.578

Chaskalson P,

speaking for all eleven sitting judges, acknowledged this. However, he asserted the proper role

of the Court as follows:

‘The question before us, however, is not what the majority of South Africans believe a proper

sentence for murder should be. It is whether the Constitution allows the sentence.’579

Chaskalson P argued that in light of the recent substitution of Parliamentary Sovereignty in

favour of Constitutional supremacy, to hold that public opinion should be allowed to determine

the question of the legality of the death penalty would represent a de facto return to

Parliamentary Sovereignty, where the protection of people’s rights is left once again to a

Therefore it is the same rights, located in the interim constitution of 1993 that are referred to in the judgment of

the Constitutional Court. 575

T Roux The Politics of Principle: The First South African Constitutional Court (CUP, 2013) 239. 576

S v Makwanyane 1995 (3) SA 391 (CC). Paragraph 11. 577


M Zlotnick ‘The Death Penalty and Public Opinion - S v. Makwanyane and Another’ (1996)12/1 South African

Journal on Human Rights, 70-79, 72. 579

S v Makwanyane 1995 (3) SA 391 (CC). Paragraph 87.

130

mandate from the public.580

He then concluded that the death penalty was unconstitutional, and

to be outlawed accordingly.

‘[T]he death sentence destroys life, which is protected without reservation under section 9 of

our Constitution, it annihilates human dignity which is protected under section 10, elements of

arbitrariness are present in its enforcement and it is irremediable [...]. I am satisfied that in the

context of our Constitution the death penalty is indeed a cruel, inhuman and degrading

punishment’581

Section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which provided for the death

penalty, was ruled to be invalid, along with any similar provisions in force in South Africa. The

court also forbade the government from executing any prisoners already sentenced to death,

requiring them to remain in custody until new sentences were imposed.582

In his concurring judgment, Ackerman J emphasised the Court’s commitment to the principle

of constitutionalism as a bulwark against arbitrary decisions or populist sentiment:

‘We have moved from a past characterised by much which was arbitrary and unequal in the

operation of the law to a present and a future in a constitutional state where state action must be

such that it is capable of being analysed and justified rationally. The idea of the constitutional

state presupposes a system whose operation can be rationally tested against or in terms of the

law. Arbitrariness, by its very nature, is dissonant with these core concepts of our new

constitutional order. Neither arbitrary action nor laws or rules which are inherently arbitrary or

must lead to arbitrary application can, in any real sense, be tested against the precepts or

principles of the Constitution.’583

The fact that by this point in time the ANC was largely in favour of the abolition of capital

punishment suggests that the Constitutional Court’s judgment here was politically safe to the

extent that despite running contrary to public opinion, it was in keeping with the (informal)

position of the ruling party. As such, the case does not represent a direct confrontation with

government. But given the unpopularity of the Court’s decision (at the time of the case almost

75% of South Africans supported the retention of the death penalty584

) and the Court’s strong

580

M Zlotnick ‘The Death Penalty and Public Opinion - S v. Makwanyane and Another’ (1996)12/1 South African

Journal on Human Rights, 70-79, 73. 581




M du Plessis ‘Between Apology and Utopia – The Constitutional Court and Public Opinion’ (2002) 18/1 South

African Journal on Human Rights, 5-6.

131

insistence on the guiding principle of constitutionalism, it did set a precedent for its own

independence, as well as for a progressive approach to constitutional interpretation:585

attributes

that have proved to be less politically palatable in subsequent judgments. The case is also

noteworthy for its thoughtful consideration of universal values and the principle of Ubuntu,

which are returned to in Chapter Six.

For Roux, Makwanyane also evinces a keen self-awareness of the Court’s need to navigate

between public popularity (including respect for the general moral zeitgeist), and its

requirement to coexist with government (in order to ensure its own longevity). As such, the

judgment can be seen to constitute a ‘largely successful exercise in judicial politics’.586

The

Court’s alleged willingness to strike such a balance (however unconsciously) will be returned to

in relation to some of the socio-economic rights cases considered below.

4.5.2 Mbeki

A second notable case regarding the Constitutional Court’s relationship with government and

Parliament is Minister of Home Affairs v. Fourie 2005.587

The case raised the question of

whether the common law definition of marriage – as between one man and one woman588

– was

constitutional. It was argued that this definition violated the rights respectively, to equality,

dignity, and privacy,589

to the extent that it prevented same-sex couples from being able to marry,

and to enjoy the same benefits and status as heterosexual couples. Following the principle

established in Makwanyane (that the operative question must be whether the Constitution has

been violated in relation to the instant case, not whether public opinion would be offended), the

Court was satisfied that the common law definition of marriage was incompatible with the

express provisions for equality in the Constitution. Section 9, subsections (2) and (3) are

particularly relevant here, defining the right and its corresponding obligations upon the State as

follows:

(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the

achievement of equality, legislative and other measures designed to protect or advance persons,

585

See generally M Zlotnick ‘The Death Penalty and Public Opinion - S v. Makwanyane and Another’ (1996)12/1

South African Journal on Human Rights, 70-79. 586


Minister of Home Affairs v. Fourie [2005] ZACC 19; 2006 (1) SA 524 (CC).

588

Id. at paragraph 3: As articulated by Innes CJ in Mashia Ebrahim v Mahomed Essop 1905 TS 59 at 61.

589

Sections 9, 10, and 14 of the Constitution.

132

or categories of persons, disadvantaged by unfair discrimination may be taken.

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more

grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour,

sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.590

Here, the ground of sexual orientation is explicitly included in subsection (3) regarding

protection from unfair discrimination by the State. The Court’s conclusion thus far is

unsurprising. Summarising the constitutionally appropriate application of equality to the issue

of marriage, Sachs J stated that:

Equality means equal concern and respect across difference. It does not presuppose the

elimination or suppression of difference. Respect for human rights requires the affirmation of

self, not the denial of self. Equality therefore does not imply a levelling or homogenisation of

behaviour or extolling one form as supreme, and another as inferior, but an acknowledgement

and acceptance of difference. At the very least, it affirms that difference should not be the basis

for exclusion, marginalisation and stigma. At best, it celebrates the vitality that difference brings

to any society.591

However, it is what the Court ordered to be done in response to its conclusion that is

noteworthy about this case in relation to the current discussion. Therefore it is the Court’s so-

called ‘remedial jurisprudence’592

that is now considered. In particular, it is the varying

approaches to the relative importance of Separation of Powers, reflected in the minority and

majority judgments in Fourie that are most pertinent to the socio-economic rights cases

discussed below, which are to be reflected on in preparation for a thoroughly contextualised

analysis of the Court’s adjudication on the right to water.

As in the case of Makwanyane, here the Court’s decision regarding the unconstitutionality of

the relevant legislation was unpopular among the public in general, which included an

organised and vocal opposition to same-sex marriage.593

However, this time the ANC was

ambivalent at best, on the issue of marriage equality. Indeed, shortly before the Fourie

590

Section 9 (2) and (3) of the Constitution. 591

Minister of Home Affairs v. Fourie [2005] ZACC 19; 2006 (1) SA 524 (CC). Paragraph 60. 592


N Barker ‘Ambiguous symbolisms: recognising customary marriage and same-sex marriage in South Africa’

(2011) 7/4 International Journal of Law in Context, 447.

133

judgment, the then Deputy President, Jacob Zuma amongst other senior ANC members, had

expressed opposition to same sex marriage.594

Rather than striking down the unconstitutional section of the relevant legislation (here Section

30(1) of the Marriage Act 1961595

), as was the approach in Makwanyane, the order of the

Constitutional Court included that:

‘[t]he common law definition of marriage is declared to be inconsistent with the Constitution

and invalid to the extent that it does not permit same-sex couples to enjoy the status and the

benefits coupled with responsibilities it accords to heterosexual couples… The declaration of

invalidity is suspended for twelve months from the date of this judgment to allow Parliament to

correct the defect.’596

Furthermore,

‘[I]f Parliament fails to cure the defect within twelve months, the words “or spouse” will

automatically be read into section 30(1) of the Marriage Act. In this event the Marriage Act will,

without more, become the legal vehicle to enable same couples to achieve the status and

benefits coupled with responsibilities which it presently makes available to heterosexual

couples.’597

Clearly the Constitutional Court was aware of the risks involved in choosing this remedial

action, and deferring to Parliament, in favour of the more direct approach in Makwanyane:

‘Two equally untenable consequences need to be avoided. The one is that the common law and

section 30(1) of the Marriage Act cease to have legal effect. The other unacceptable outcome is

that the applicants end up with a declaration that makes it clear that they are being denied their

constitutional rights, but with no legal means of giving meaningful effect to the declaration; after

three years of litigation Ms Fourie and Ms Bonthuys will have won their case, but be no better

off in practice.’

In pre-empting Parliament’s possible failure to act, by directing the rephrasing of the relevant

section of the Marriage Act after 12 months, the Court could be fairly certain that neither of the

above eventualities would arise. However, it is worth considering in more detail the Court’s

sensitivity to the second consequence listed above, namely that the claimants’ remedy must

594

T Roux The Politics of Principle: The First South African Constitutional Court (2013, CUP) 377. 595

Act 25 of 1961. 596


Ibid. Paragraph 161.

134

bring about practical change. That this represents the most basic requirement of transformative

constitutionalism is clear: Applying the provisions of the Constitution ‘in action’ must lead to

positive, substantive change.598

But the Court’s concern that the transformative aspect of its

judgment may be lost in the face of parliamentary inaction is something that will be reflected on

in more depth below, particularly in relation to the dissonant reality for many, of having a

constitutional right to water, and simultaneously not having access to sufficient water. Sachs J’s

concerns, quoted above, clearly indicate that the Court is not ignorant of the deeply troubling

nature of such disconnection between what could be described as ‘rights as declared, and right

as lived’.

Notwithstanding this, the approach in Fourie (to allow Parliament to correct the defect

identified in the relevant Act, in a way of its choosing), was variously defended as compatible

with the doctrine of Separation of Powers, and criticised by the minority judgment as unduly

deferent. Despite the difference of opinion, the majority judgment could be understood as

reflecting an ‘institutional approach’ to judicial restraint: the Court taking an expansive view of

what is reviewable and justiciable, while affording significant weight to the views of Parliament as

the other decision-maker, and doing so explicitly. It could also be interpreted in light of the

distinction between principle and policy: Ensuring that the principle of marriage equality

(characterised as a matter of justice or fairness) is protected, while deferring to the legislature

regarding questions of policy (see discussion at 4.2).

The term ‘separation of powers’ or ‘trias politica’ was coined by Charles-Louis de Secondat,

baron de La Brède et de Montesquieu, in the 18th century, and first expressed in his book The

Spirit of the Laws.599

The doctrine provides that the political power of the State is divided into

legislative, executive and judicial branches, which must be separate and act independently. The

aim of this is to prevent the concentration of power and thereby, to promote liberty and

accountability.600

In the context of the South African state, the three arms of the State are

defined as Parliament (legislature), President and Executive, and the Judiciary. The scope and

remit of each is detailed in chapters Four, Five, and Eight respectively of the 1996 Constitution.

Section 44 asserts that the passing and amending of legislation is within the purview of

Parliament.

598


Authority to Advance Substantive Justice’ (2010) 13 Journal of Gender, Race & Justice 575-614, 575. 599

A M Cohler (Ed) Montesquieu: The Spirit of the Laws (Cambridge Texts in the History of Political Thought)

(CUP, 1989) 21. 600

Ibid.

135

Sachs J, giving judgment for the majority in Fourie, sought to respect and maintain this

separation of powers between the role of the Court, as interpreter of the Constitution, and

Parliament as the author of legislation, by preserving Parliament’s legislative role regarding the

issue of marriage:

‘This judgment serves to vindicate the rights of the applicants by declaring the manner in which

the law at present fails to meet their equality claims. At the same time, it is my view that it would

best serve those equality claims by respecting the separation of powers and giving Parliament an

opportunity to deal appropriately with the matter. In this respect it is necessary to bear in mind

that there are different ways in which the legislature could legitimately deal with the gap that

exists in the law.’601

In so-doing, according to Roux, the Court’s order communicated to Parliament, and to the

public ‘we are confident that when the people’s representatives reflect upon this matter in

Parliament, armed with the guidance we have given them, they will arrive at the position

required by constitutional principle’.602

But such confidence in, and deference towards

Parliament’s legislative role was not held unanimously. By contrast, Justice O’Regan explains:

‘The doctrine of Separation of Powers is an important one in our Constitution but I cannot see

that it can be used to avoid the obligation of a court to provide appropriate relief that is just and

equitable to litigants who successfully raise a constitutional complaint.’603

Rather, for O’Regan, the principal issue is whether the Constitution has been violated. If the

Court has satisfied itself that this is the case, then it is duty-bound to remedy the violation.

Consideration of Separation of Powers is subordinate to this duty, not because the Court has

concluded such, but because the Constitution requires it:

‘It would have been desirable if the unconstitutional situation identified in this matter had been

resolved by Parliament without litigation. The corollary of this proposition, however, is not that

this Court should not come to the relief of successful litigants, simply because an Act of

Parliament conferring the right to marry on gays and lesbians might be thought to carry greater

democratic legitimacy than an order of this Court. The power and duty to protect constitutional

rights is conferred upon the courts and courts should not shrink from that duty.’604

601




Ibid at paragraph 171.

136

Despite O’Regan’s dissent, the Court’s order stopped short of providing immediate relief for

the applicants. But the following year, Parliament enacted the Civil Union Act 2006605

‘to

regulate the solemnisation and registration of civil unions, by way of either a marriage or a civil

partnership’.606

This allowed for same-sex marriages, since no distinction is made in the Act

between same-sex and heterosexual couples. Again, for Roux, this is illustrative of the

Constitutional Court’s self-awareness regarding the potential consequences of their decisions

upon the continued independence of the Court itself. Following O’Regan’s argument, the

Court clearly had the constitutional power to amend the Marriage Act. But did it have the

institutional power?607

Viz. Was the Court sufficiently confident in its own position, in the face

of government hostility and unpopularity in the public perception, to act to the exclusion of

Parliament? If Roux’s analysis is correct, the answer to this would be ‘no’. Also, ten years after

Makwanyane, this case was heard within a different political/constitutional climate. The country

was under different Presidential leadership (albeit it that the government has remained ANC),

and President Mbeki’s relationship with the courts was strained.608

Arguably, by 2005 the

‘honeymoon’ period of South Africa’s new democracy had waned, and the transformative work

of the Court was becoming correspondingly less strident (albeit perhaps no less effective in the

Fourie case, in light of Parliament’s positive legislative response).

4.5.3 Zuma

Tensions between the government and Constitutional Court since Mbeki’s resignation in 2008

have deepened. When President Jacob Zuma took power in 2009, there was concern that he

would actively try to limit the Constitutional Court’s influence.609

On several occasions before

and after taking office, Zuma and other senior ANC officials expressed concern with what they

considered to be the Court’s ‘judicial politicking’610

in opposition to the government. Straining

credibility, the ANC Deputy Minister of Correctional Services, Ngoako Ramthlodi, in 2011,

accused the Judiciary and civil society of:

605

Act 17 of 2006. 606

Ibid Section 2 (a). 607


‘Mbeki Challenges Court Ruling to Defend Reputation’ AFP 23 September 2008. Available at:

<http://www.worldipcomgroup.com/newsafp/africa/080923084418.6lnqsxcy.html> (Last accessed 27 July 2016). 609


Powers’ (2014) 23/35 Transnational Law & Contemporary Problems 34-49, 35. 610

C Hartman et al ‘Sustainable Governance in the BRICS; Country Report South Africa 2 (2013). Available at:

<http://sgi-network.org/brics/pdf/Country%20Report%20South%20Africa.pdf> (Last accessed 27 July 2016).

137

‘sustained and relentless efforts to immigrate [sic] the little power left with the executive and the

legislature… to curtail efforts and initiatives aimed at inducing fundamental changes’.611

It is worth noting that Zuma has had personal battles with the courts and national prosecutors

in recent years (he was acquitted in 2006 of raping a female domestic worker,612

then

investigated for corruption in 2007 – the charges were subsequently dropped, but this decision

has recently been appealed613

), although whether these experiences have influenced his

professional view of the courts is not certain. His comments in 2012 that ‘we don’t want to

review the Constitutional Court, we want to review its powers’614

seem incongruent with the

Court’s institutional independence, as enshrined in the Constitution, and discussed above.

Nevertheless, in the same year, following several court decisions against the government on

issues of executive power,615

the ANC’s Department of Justice issued a ‘Discussion Document

on the Transformation of the Judicial System’.616

The following extract from this document is

instructive. It summarizes the government’s appraisal of the current role of the Constitutional

Court, while betraying its annoyance with some of the Court’s decisions:

‘Over the past few years, many in the Judiciary have shown a profound understanding of

constitutional imperatives and set out to defend the basic law of the land. This includes many

judgments, particularly by the Constitutional Court, that have reflected progressive

interpretation of the Constitution and social rights in particular. Government continues to

respect and implement the courts’ decisions unconditionally. Notwithstanding these

achievements, in an evolving polity, the issue of appropriate balance among the three centres –

the Judiciary, the Executive and Parliament – is one that will continually be contested.

There have been some instances where certain court decisions are perceived not to fully

advance the transformative purpose of the Constitution. There is therefore a need for open and

611

‘Double Speak about Judicial Reform in South Africa Raises Alarm Bells’, ISS Africa 23 March 2012. Available

at: <http://www.issafrica.org/iss-today/double-speak-about-judicial-reform-in-south-africa-raises-alarm-bells> (Last


‘Zuma found not guilty’, Mail & Guardian 8 May 2006. Available at <http://mg.co.za/article/2006-05-08-zuma-

found-not-guilty> (Last accessed 27 July 2016). 613

‘Prosecutors drop Jacob Zuma corruption charges’, The Guardian 6 April 2009. Available at:

<http://www.theguardian.com/world/2009/apr/06/zuma-corruption-charges-dropped> (Last accessed 27 July 2016).

See also: < http://ewn.co.za/2016/05/23/NPA-to-appeal-ruling-that-charges-against-Zuma-be-reinstated> (Last


‘Double Speak about Judicial Reform in South Africa Raises Alarm Bells’, ISS Africa 23 March 2012. Available

at <http://www.issafrica.org/iss-today/double-speak-about-judicial-reform-in-south-africa-raises-alarm-bells> (Last


See Langa v. Hlophe 2009 (4) SA 382 (SCA); Glenister v. President of South Africa II 2011 (3) SA 347 (CC);

Justice Alliance of South Africa v. President of the Republic of South Africa 2011 (5) SA 388 (CC); Democratic

Alliance v. Acting National Director of Public Prosecutions 2012 (3) SA 486 (SCA). 616

Available at < http://www.justice.gov.za/docs/other-docs/20120228-transf-jud.pdf > (Last accessed 27 July 2016).

138

constructive debate on the decisions of the courts and how they seek to advance the vision of a

non-racial, non–sexist and prosperous democratic society.617

The ‘transformative purpose of the Constitution’, mentioned above is defined in the same

document as including:

(a) The entrenchment and realization of democratic values enshrined in the Constitution.

(b) Eradicating poverty and underdevelopment, within the context of a thriving and growing first

economy, and the successful transformation of the second economy.

(c) Providing adequate safety and security measures for all people in South Africa to be and feel

safe.

(d) Building a strong and democratic state that truly serves the interests of all people and

promotes social justice

(e) Contributing to the achievement of the African renaissance and a better world.618

As will be apparent in the analysis of socio-economic rights cases below, some criticism of the

Court’s failure to fully advance an agenda of transformation is justified. But, levelled by

government, such criticism has been interpreted as ‘code for the ANC seeking more compliant

courts’.619

Most recently, in March 2016, the Constitutional Court decided that Zuma had acted

unconstitutionally when using public money to pay for non-essential upgrades to his private

residence; ordering him to repay the money.620

This decision may serve to deepen any personal

animosity the incumbent President has towards the Court. But it would be erroneous to

conclude that the Constitutional Court is showing signs of capitulation in the face of

government pressure. Indeed, Chief Justice Mogoeng Mogoeng took the opportunity in this

most recent case to remind Zuma, without compromise, of the President’s grave responsibility:

617

Ibid at 10 (3.3.3 – 3.3.4). 618

Ibid at 4 (2.3.3). 619


Powers’ (2014) 23/35 Transnational Law & Contemporary Problems 34-49, 40. 620

‘Jacob Zuma breached constitution over home upgrades, South African court rules’, The Guardian 31 March

2016. Available at: <http://www.theguardian.com/world/2016/mar/31/jacob-zuma-ordered-repay-upgrades-

nkandla-home-south-african-state-funds> (Last accessed 27 July 2016).

139

‘The president is the head of state, his is the calling to the highest office in the land… The

nation pins its hopes on him to steer the country in the right direction.’621

While it remains the case that the relationship between the government, the ANC-dominated

Parliament, and the courts is delicate at best, and that under Zuma’s presidency, a truly

independent judiciary is felt as ‘a thorn in its side’,622

it is also clear that the courts (and the

Constitutional Court in particular) continue to function as a site of government accountability,

and a champion of the Constitution. Explanations of case decisions, based on considerations of

deference to Separation of Powers, judicial activism, and even the Court’s own existential

concerns, will continue to be developed and applied to the discussion of socio-economic rights

cases below.

Notwithstanding the ensuing discussion of whether the Constitutional Court has acted in a

sufficiently transformative way in certain cases (including most relevantly for the purpose of the

present study, regarding interpretation of the right of access to sufficient water), it is clear that

the Court has embraced its role as arbiter and protector of the Constitution with diligence. In

light of this record of institutional independence, and in particular, being mindful of the Court’s

willingness to hold government to the standards that the Constitution imposes, attention now

turns to the judgments of the Constitutional Court that specifically relate to socio-economic

rights (including the right of access to sufficient water), in order to refocus on the central

problematic of this thesis: the extent to which a right to water can achieve access to sufficient

water for everyone.

4.6 Case decisions on socio-economic matters: an illusive (transformative) narrative?

The Constitution’s Bill of Rights imposes significant positive duties on government: to protect;

promote; and fulfil the rights therein (as well as the negative duty to respect). Since the

protection, promotion and fulfilment of economic and social rights potentially places onerous,

and costly obligations on government (to provide housing, healthcare or water for instance), the

interpretation and application of such rights (here labelled socio-economic rights) are

particularly likely to affect the relationship between the Constitutional Court (as the interpreting

power) and the government and Parliament (as the branches of the State charged variously with

fulfilling the rights at issue, and with passing legislation, and agreeing budgets to enable such).

621

Ibid. 622


Powers’ (2014) 23/35 Transnational Law & Contemporary Problems 34-49, 38.

140

Given the high potential for adjudication of socio-economic rights to create tensions with the

government and legislature, the foregoing general discussion of the relationship between the

courts and the other branches of the State has provided the context within which to interrogate

key socio-economic rights cases. Of particular importance will be how these court decisions

take into account the corresponding obligations of the State. To omit the preceding discussion

would risk scrutinizing the court’s judgments on socio-economic rights in isolation from the

political and constitutional context in which decisions have to be made. It would also ignore the

insightful shift from greater to lesser direct legislative intervention, evidenced in Makwanyane,

then Fourie.

It is also important to clarify that while the inclusion of socio-economic rights in the 1996

Constitution was a subject of some controversy (see discussion at 3.3.2), the question of

whether these rights are justiciable was directly addressed during the certification proceedings

before the Constitutional Court:

‘[T]hese rights are, at least to some extent, justiciable. As we have stated in the previous

paragraph, many of the civil and political rights entrenched in the [constitutional text before this

Court for certification in that case] will give rise to similar budgetary implications without

compromising their justiciability. The fact that socio-economic rights will almost inevitably give

rise to such implications does not seem to us to be a bar to their justiciability. At the very

minimum, socio-economic rights can be negatively protected from improper invasion.’623

Therefore, further discussion regarding whether these rights should be justiciable will not be

pursued here, although it should be noted that globally, the role of socio-economic rights

remains highly contentious. Rather, attention will focus on how particular socio-economic rights

have been adjudicated on by the Constitutional Court, and to what ends.

4.6.1 Soobramoney v Minister of Health (Kwazulu-Natal) (1997)624

The first case for consideration here immediately reminds us that while the Bill of Rights

contains a broad range of socio-economic rights, these rights are qualified, and are to be

realised progressively, within the available resources of the State (see 3.3.2 and 4.3.1). This case

623

Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of

South Africa, 1996 (4) SA 744; 1996 (10) BCLR 1253 (CC) at paragraph 78.

624

Soobramoney v Minister of Health (Kwazulu-Natal) (1997) (CCT32/97) [1997] ZACC 17; 1998 (1) SA 765

(CC); 1997 (12) BCLR 1696 (27 November 1997).

141

was the first to raise the scope of Section 27 (1) - (3), access to healthcare, and to emergency

medical treatment,625

before the Constitutional Court. The appellant was a 41 year old,

unemployed man who suffered from diabetes, ischaemic heart disease, cerebrovascular disease

and chronic renal failure. The appellant began undergoing dialysis treatments in a public

hospital. However, due to the high demand, lack of equipment and the patient not qualifying

for continuous treatment, his dialysis was stopped. The appellant consequently began the same

treatment in a private hospital, but quickly became unable to finance this himself.

He appealed to the Constitutional Court under Section 27(3) in casu that he was refused

emergency medical treatment, as well as regarding Section 11; the right to life. Counsel for the

appellant compared the appellant’s situation to the case of Paschim Banga Khet Mazdoor

Samity and others v State of West Bengal and another626

before the Supreme Court of India. In

this case, the right to life in the Indian Constitution was interpreted as including a positive duty

on the State ‘to extend medical existence for preserving human life’. Therefore it was held that

by refusing treatment, the patient was denied the right to life. 627

However, before the

Constitutional Court, Chaskalson P noted the differences between the Constitutions of South

Africa and India, adding that the expansive, positive interpretation of the right to life in the

Indian context was warranted because of the relative lack of separate economic and social

rights, compared to those in the South African Bill of Rights:

‘In our Constitution the right to medical treatment does not have to be inferred from the nature

of the state established by the Constitution or from the right to life which it guarantees. It is dealt

with directly in section 27.’628

Furthermore, the Constitutional Court stated that on the instant facts the appellant did not

require emergency treatment. He was suffering from chronic disease and required dialysis two

or three times a week, therefore the Court held that this case did not fall within section 27(3),

but better related to section 27(1) and (2), under the right of access to health care services.

These sections entitle everyone to have access to health care services provided by the state

‘within its available resources’.

625

Section 27 (3) of the Constitution: ‘No one may be refused emergency medical treatment’.

626

(1996) AIR SC 2426. 627

Ibid at 2429.

628

Soobramoney v Minister of Health (Kwazulu-Natal) (1997) (CCT32/97) [1997] ZACC 17, at paragraph 19.

142

The Court’s reasoning here confirmed that the obligations upon the State, which Section 27 (1)

and (2) entail, do not require immediate fulfilment, and that the resources currently available

will therefore dictate the degree to which the appellant is entitled to these rights at the present

time. The stark reality was that ‘[a]t present the Department of Health in KwaZulu-Natal does

not have sufficient funds to cover the cost of the services which are being provided to the

public.’629

Furthermore, by acknowledging that the available resources in relation to such rights cannot but

shape the extent to which the rights can be made manifest at any one point in time, the Court

reaffirmed that decisions about the allocation of such scarce resources should remain with the

politicians and policy makers, and not with the courts:

‘The provincial administration which is responsible for health services in KwaZulu- Natal has to

make decisions about the funding that should be made available for health care and how such

funds should be spent. These choices involve difficult decisions to be taken at the political level

in fixing the health budget, and at the functional level in deciding upon the priorities to be met.

A court will be slow to interfere with rational decisions taken in good faith by the political

organs and medical authorities whose responsibility it is to deal with such matters.’630

This represents an early indication of the Constitutional Court’s sensibilities around the

Separation of Powers, as later articulated by Sachs J in Fourie (discussed above). Here, the

correct interpretation of Section 27 (1) and (2) did not require a co-option of executive (policy-

making) power by the Court. Consequently the Court concluded that the state had not

breached any of its constitutional duties and therefore the appellant was not entitled to relief.

However, despite this decision, which the Court acknowledged was a tragedy for the appellant,

Chaskalson P reiterated the Constitutional Court’s commitment to social transformation, albeit

mindful of the limitations facing this task, which the instant case cruelly illustrated:

‘We live in a society in which there are great disparities in wealth. Millions of people are living

in deplorable conditions and in great poverty. There is a high level of unemployment,

inadequate social security, and many do not have access to clean water or to adequate health

services. These conditions already existed when the Constitution was adopted and a

commitment to address them, and to transform our society into one in which there will be

629


Ibid at paragraph 29.

143

human dignity, freedom and equality, lies at the heart of our new constitutional order. For as

long as these conditions continue to exist that aspiration will have a hollow ring.’631

This case therefore affirms the Constitutional Court’s transformative impetus, while

acknowledging that without sufficient resources, the prospects for meaningful transformation

are severely constrained. Such a tension will become a familiar one as subsequent cases are

considered. Moreover, this decision reinforced the constitutionally orthodox separation of roles

between the courts and the executive, whereby decisions about the size and share of resources

remain within the remit of the executive. Not to ignore the personal human consequences of

these constitutional questions, the appellant, Thiagraj Soobramoney died from renal failure a

few days after the Court’s decision.632

4.6.2 Government of the Republic of South Africa v. Grootboom

(2000)633

This is undoubtedly the most famous and celebrated decision of the Constitutional Court to-

date. Any attempt to identify a distinct jurisprudential approach to the Court’s socio-economic

rights decisions must acknowledge the guiding role that the concept of reasonableness has

played since this seminal case. Yet, as will be argued, there is a troubling disconnection between

the prominence given to the Court’s reasoning and decision in Grootboom, and the remedial

consequences for the parties involved, which must draw into question the transformative limits

of this and other socio-economic rights decisions.

Mrs Grootboom and others (the respondents), living in an informal settlement in appalling

conditions, without water, sewerage or refuse removal services,634

decided to illegally occupy a

plot of land due to be the site of a new low-cost housing development. In due course the

respondents were evicted: their shacks were bulldozed, and their possessions lost in the

process. The respondents were rendered homeless as a result of the eviction, and applied to

the High Court ‘for an order requiring government to provide them with adequate basic shelter

or housing until they obtained permanent accommodation’.635

The appellants (the Government

of the Republic of South Africa, the Premier of the Province of the Western Cape, Cape

Metropolitan Council, and Oostenberg Muncipality) were ordered to provide the respondents

631


‘The High Cost of Living’ The Mail & Guardian 5 December 1997. Available at < http://mg.co.za/article/1997-

12-05-the-high-cost-of-living> (Last accessed 27 July 2016). 633

[2000] ZACC 19; 2001 (1) SA 46 (CC). 634

Government of the Republic of South Africa v. Grootboom & Others, 2001 (1) SA 46 (CC). Paragraph 7. 635

Ibid paragraph 4.

144

with at least a minimum standard of shelter, which included ‘tents, portable latrines and a

regular supply of water (albeit transported)’.636

The appellants challenged the correctness of this

order. The case was subsequently heard in the Constitutional Court. Consequently, the majority

of the legal argument in Grootboom relates to interpreting the scope and application of the

respondents’ constitutional right to housing, and the corresponding State obligations that this

requires.

The Court accepted that the respondents had no right to claim shelter immediately, since the

stated nature of the right to housing obliged the State to ‘act positively and proactively within its

available resources to ameliorate the plight of indigent people living in deplorable conditions,’637

but it did not require the immediate fulfilment of the respondents’ rights. The Court was critical

of the government’s approach to housing policy since 1994, which they inferred was overly

focussed on commercial concerns, including prioritising the ‘normalisation of the market for

housing in townships’:638

‘The definition of housing development as well as the general principles that are set out do not

contemplate the provision of housing that falls short of the definition of housing development in

the Act. In other words there is no express provision to facilitate access to temporary relief for

people who have no access to land, no roof over their heads, for people who are living in

intolerable conditions and for people who are in crisis because of natural disasters such as

floods and fires, or because their homes are under threat of demolition. These are people in

desperate need. Their immediate need can be met by relief short of housing which fulfils the

requisite standards of durability, habitability and stability encompassed by the definition of

housing development in the Act.’639

As a result of the State’s failure to enact housing policy to the standards required by the

Constitution, the Court set aside the order of the High Court, and issued an order to create and

implement a housing programme that included provision of relief for those people who had not

yet been provided with accommodation.640

A more detailed analysis of the Court’s reasoning, as

it relates to socio-economic rights more generally, is undertaken below.

636

Ibid. 637

M Mogoeng ‘Twenty years of the South African Constitution: Origins, Aspirations and Delivery’ (2015) 27

Singapore Academy of Law Journal 1-16, 12. 638


191. 639

Ibid paragraph 52. 640


Singapore Academy of Law Journal 1-16, 12.

145

Yacoob J, who provided the lead judgment, emphasised the need to understand all socio-

economic rights as being interconnected, and embedded within the nation’s social and

historical context.641

Consequently, he identified apartheid as the underlying cause of Mrs

Grootboom’s plight:

‘Colonial dispossession and a rigidly enforced racial distribution of land in the rural areas had

dislocated the rural economy and rendered sustainable and independent African farming

increasingly precarious. Given the absence of formal housing, large numbers of people moved

into informal settlements throughout the Cape peninsula. The cycle of the apartheid era,

therefore, was one of untenable restrictions on the movement of African people into urban

areas, the inexorable tide of the rural poor to the cities, inadequate housing, resultant

overcrowding, mushrooming squatter settlements, constant harassment by officials and

intermittent forced removals.’642

While this was undoubtedly the case in general historical terms (echoing the author’s account

of apartheid’s legacy, set out in the previous chapter), the immediate issue before the

Constitutional Court was rather more specific, namely the scope of Section 26 of the

Constitution; the right to housing:

(1) Everyone has the right to have access to adequate housing.

(2) The state must take reasonable legislative and other measures, within its available resources, to

achieve the progressive realisation of this right.

(3) No one may be evicted from their home, or have their home demolished, without an order of

court made after considering all the relevant circumstances. No legislation may permit arbitrary

evictions.643

It is appropriate to quote Yacoob J at length here regarding the correct interpretation of socio-

economic rights, since, as will be become apparent, his interpretation has become an influential

schema, followed in subsequent cases:

‘Like all the other rights in Chapter 2 of the Constitution (which contains the Bill of Rights),

section 26 must be construed in its context. The section has been carefully crafted. It contains

three subsections. The first confers a general right of access to adequate housing. The second

establishes and delimits the scope of the positive obligation imposed upon the state to promote

641

Ibid paragraphs 24 & 25. 642

Ibid paragraph 6. 643

Section 26 Constitution of the Republic of South Africa, No. 108 of 1996. Additionally, Section 28 (1) (c) was

relevant to the particular rights of the children who had been living in the informal settlement: ‘Every child has the

right to basic nutrition, shelter, basic health care services and social service’. Note: The third subsection referred to

above was not directly relevant to the case, as Mrs Grootboom’s eviction had been lawfully executed.

146

access to adequate housing and has three key elements. The state is obliged: (a) to take

reasonable legislative and other measures; (b) within its available resources; (c) to achieve the

progressive realisation of this right… The third subsection provides protection against arbitrary

evictions.

Interpreting a right in its context requires the consideration of two types of context. On the one

hand, rights must be understood in their textual setting. This will require a consideration of

Chapter 2 and the Constitution as a whole. On the other hand, rights must also be understood

in their social and historical context.’644

Particularly notable here is the State’s obligation to take reasonable measures, within the

confines of the resources available to it, to improve the degree to which the relevant right is

realised. It is undoubtedly the case that, in practice it may be difficult to identify exactly what

resources are available at any one point in time, and it may be complicated to effectively

monitor the progressive realisation of particular rights (ensuring that the degree to which

respective rights are fulfilled does not plateau or regress). Therefore elements (b) and (c) may

represent considerable practical challenges. But both elements can be recognised as

epistemologically objective: ‘Available resources’ is a quantifiable concept, in theory at least,

while ‘progressive realisation’ describes a trajectory directed towards on-going improvement,

which is also theoretically capable of measurement, despite complexity regarding what metrics

to use. In contrast, the State’s obligation to take reasonable (legislative and other) measures

eschews the objective attributes of elements (b) and (c). What constitutes reasonable measures

requires subjective consideration. This is not to say that element (a) should be dismissed as an

arbitrary standard. Rather, Yacoob’s approach above prescribes that what counts as reasonable

measures will depend on two contexts; the textual, and the social/historical. But the

objective/subjective distinction here does suggest that it is reasonableness that is the principal

concept with which the Constitutional Court interrogated the scope of the right to housing in

the instant case, and would apply in subsequent socio-economic decisions. Yacoob J defined

reasonableness as follows:

‘[a] court considering reasonableness will not enquire whether other more desirable or

favourable measures could have been adopted or whether public money would have been

better spent. The question would be whether the measures that have been adopted are

644

Government of the Republic of South Africa v. Grootboom & Others, 2001 (1) SA 46 (CC). Paragraphs 21 &

22. Emphasis added.

147

reasonable. It is necessary to recognise that a wide range of possible measures could be adopted

by the state to meet its obligations.’645

Given that the right to water is the central focus of this thesis, a more detailed consideration of

reasonableness as a legal principle is undertaken specifically in relation to the case of Mazibuko

below. But it is important to note here that what is prescient to the application of

reasonableness as per Yacoob’s definition, is that it allows for the accommodation of a

legitimate diversity of views within the ‘limits of reason’.646

Explained in light of an institutional

approach to judicial restraint, significant weight is afforded to these views, and consequently the

Court’s restraint will be in evidence unless such views (and the actions stemming from them)

are outside the scope of what is reasonable.647

In the case of Grootboom, the State’s failure to provide for situations akin to those that Mrs

Grootboom and others found themselves in was deemed unreasonable. In other words, the

Court held that the State had not fulfilled its obligation to take reasonable legislative and other

measures to progressively realise the respondents’ rights. What the Court did not do, however,

was to stipulate what such reasonable measures would have been. This represents the

fundamental distinction between a ‘minimum core’ (sometimes referred to as a minimum

quota) approach to realising socio-economic rights, and the approach of reasonableness, which

the Constitutional Court pioneered in Grootboom, and has favoured ever since. As the author’s

interview with Justice Yacoob illustrates (a portion of which is quoted at the beginning of this

chapter), the Court believed that adoption of a jurisprudence of reasonableness provides

greater flexibility - allowing for a greater permissible range of policy decisions, than would the

‘mechanical determination’648

of minimum quotas. Moreover, this faith in the benefits of

reasonableness, according to Yacoob J, has remained steady. Speaking to me shortly after

retiring from the bench in January 2013 Justice Yacoob said ‘I think that all the judgments of

645

Grootboom (CC). Paragraph 41. 646

C Hoexter ‘The future of judicial review in South African administrative law’ (2000) South African Law Journal

484, 509. 647

Constructed in this way, the reasonableness ‘test’ echoes the English Public Law concept of ‘Wednesbury

unreasonableness’, whereby a decision is deemed to be Wednesbury unreasonable (or irrational) if it is so

unreasonable that no reasonable person acting reasonably could have made it. From the Grootboom judgment it

would seem that the test for declaring an action ‘unreasonable’ in the South African jurisdiction is less stringent

than that in England and Wales. i.e it is more likely that the actions of a public authority in South Africa will be

deemed unreasonable, than that the actions of an English public body would be deemed Wednesbury

unreasonable. But nevertheless, the reasonableness ‘test’ in South Africa still provides considerable scope to the

public body. See: Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223. 648


148

our court while I was there have been consistent’.649

Certainly, the Court’s adoption of

reasonableness is central to the Mazibuko judgment on the right to water, discussed below.

It is important to note that whatever the perceived benefits of applying a ‘reasonableness

approach’ to socio-economic rights cases, this represents a divergence from the approach

developed by the United Nations General Committee on Economic Social and Cultural Rights

(CESCR), whose task it is to interpret the obligations of State-parties to the International

Covenant on Economic, Social and Cultural Rights (ICESCR). The Committee, and Covenant

are discussed in more detail in Chapter Two. But in relation to the right to housing, raised in

Grootboom, the ICESCR is directly relevant. Article 11.1 provides that:

‘The States Parties to the present Covenant recognize the right of everyone to an adequate

standard of living for himself and his family, including adequate food, clothing and housing, and

to the continuous improvement of living conditions. The States Parties will take appropriate

steps to ensure the realization of this right, recognizing to this effect the essential importance of

international co-operation based on free consent.’650

At the time of the Grootboom judgment, the Republic of South Africa was a signatory to the

ICESCR, but had not yet ratified it. Ratification subsequently took place in January 2015.651

Despite this, Section 39 of the Constitution obliges courts to consider international law

(whether or not it is binding upon the South African State) when interpreting the Bill of Rights,

an obligation elaborated on by Chaskalson P in Makwanyane:

‘public international law would include non-binding as well as binding law. They may both be

used under the section as tools of interpretation. International agreements and customary

international law accordingly provide a framework within which [the Bill of Rights] can be

evaluated and understood, and for that purpose, decisions of tribunals dealing with comparable

instruments, such as the United Nations Committee on Human Rights, the Inter-American

Commission on Human Rights, the Inter-American Court of Human Rights, the European

Commission on Human Rights, and the European Court of Human Rights, and, in appropriate

cases, reports of specialised agencies such as the International Labour Organisation, may

provide guidance as to the correct interpretation of particular provisions of [the Bill of Rights].’652

649

Ibid. 650

Article 11.1 ICESCR. Emphasis added. 651

See < https://www.escr-net.org/news/2015/government-south-africa-ratifies-icescr> (Last accessed 27 July 2016). 652

S v Makwanyane 1995 (3) SA 391 (CC). Paragraph 35.

149

Therefore the approach taken by the CESCR to interpreting State-parties’ obligations regarding

the right to housing in the Covenant was important to consider. The CESCR’s approach is

summarised below as follows:

‘On the basis of the extensive experience gained by the Committee, as well as by the body that

preceded it, over a period of more than a decade of examining States parties’ reports the

Committee is of the view that minimum core obligation to ensure the satisfaction of, at the very

least, minimum essential levels of each of the rights is incumbent upon every State party. Thus,

for example, a State party in which any significant number of individuals is deprived of essential

foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic

forms of education, is prima facie, failing to discharge its obligations under the Covenant. If the

Covenant were to be read in such a way as not to establish such a minimum core obligation, it

would be largely deprived of its raison d’etre.’653

The CESCR’s explicit adoption of minimum core obligations would seem an appropriate

approach for the Constitutional Court to follow. Yet this is rejected for three reasons in the

instant case, which Yacoob J makes clear. First, the CESCR’s conclusion was based on

‘extensive experience’ that allowed for an accurate determination of what a minimum core

should be. The Constitutional Court, according to Yacoob J lacked comparable information,

and could therefore not determine such a minimum core.654

Second, it was stated that the ‘right

to housing’, set out in the ICESCR differs from the ‘right of access to housing’ in Section 26 of

the Constitution. Yacoob J contested that determination of a minimum core in the more

nuanced context of the Constitutional right ‘presents difficult questions’:655

‘This is so because the needs in the context of access to adequate housing are diverse: there are

those who need land; others need both land and houses; yet others need financial assistance.

There are difficult questions relating to the definition of minimum core in the context of a right

to have access to adequate housing, in particular whether the minimum core obligation should

be defined generally or with regard to specific groups of people.’656

653




Ibid.

150

Third, the diversity of needs in relation to individuals’ right of access to housing seems to

undermine any claim that there is one (single) minimum core657

, leading the Court away from

the adoption of such an approach, and towards the more flexible concept of reasonableness.

While the Grootboom judgment has been broadly celebrated, it has also been criticised. Some

commentators have interpreted the Court’s eschewal of a minimum quota approach as fatal to

fulfilling its own transformative role, as mandated by the Constitution. Shortly after the

judgment, Bilchitz pertinently criticised Yacoob J’s claim that the diversity of needs regarding

housing disqualifies a ‘minimum core’ approach:

‘The fact that some need access to land, some need land and houses and others need financial

assistance, is not relevant to the determination of the minimum core. Each is entitled to the

same level of provision; the differential needs people have will determine in what way the

government is required by the Constitution, if at all, to assist them.’658

Bilchitz contests that it would be perfectly workable to set a minimum core that provides clarity

regarding the particular obligations of the State towards each individual:

Let us specify the minimum core obligation imposed by s 26 as requiring the government to

provide each person in South Africa with shelter that protects him or her from the elements. It

then becomes clear that those who have such shelter have no basis upon which to claim it from

the government. Those who have land but no shelter, could claim building materials for

instance. Those with neither land nor shelter, could claim both. But the general obligation of

the state does not vary.’659

Certainly the rejection of a minimum core approach largely on the basis that it ‘presents

difficult questions’, raises its own questions about how thoroughly this approach was considered

before the concept of reasonableness was preferred. As Bilchitz’s example above illustrates,

adopting a minimum core approach to the issue before the Court in Grootboom was possible,

but it would also have conferred a significant obligation upon the State (albeit ameliorated

within the constraints of progressive realisation and available resources). Living without land or

shelter, Mrs Grootboom’s community could have claimed that their right of access to housing

required the provision by the government of both of these. But instead, limiting itself to the

question of whether the government’s housing policy was reasonable, the Court avoided

imposing any direct or specific obligations upon the State, other than to revise its housing

657

Ibid. 658

D Bilchitz ‘Giving socio-economic rights teeth: The minimum core and its importance’ (2002) 119 South

African Law Journal 489. 659

Ibid.

151

programme. Indeed, it is the issue of State obligations that may best help explain the adoption

of a jurisprudence of reasonableness in preference to that of a minimum core. Mindful of the

finite resources available to the State, and deferent to the policy-making and legislation-creating

roles of the executive and legislature respectively, it seems that the Court chose to remain firmly

within its remit, as dictated by the Separation of Powers, while fulfilling its own ‘minimum core’

obligation towards the Bill of Rights. Directing government to devise and implement a new

housing programme that included measures to provide relief for those lacking accommodation,

can be seen as requiring the least encroachment on government’s discretion, while promoting

the ‘spirit, purport and objects of the Bill of Rights’.660

If such an analysis is correct, the jurisprudence of reasonableness can be understood as

containing within it a high degree of judicial deference. Whether this deference is due to

constitutional sensibilities or realpolitik is harder to say. This is not to deny any transformative

role for the Court. That socio-economic rights are justiciable at all, represents a degree of

transformative potential for the Courts, not available in other jurisdictions. But it is plausible to

assert that determining a minimum core for the right of access to housing, in this case, would

have led to greater positive transformation for the respondents, than was the case here. Echoing

Mr Soobramoney’s experience, once again the expansive rights in the Constitution failed to

benefit the vulnerable litigants involved. In response to the Court’s order to revise its housing

programme, the government embarked on a significant new housing project for poor residents

in the Western Cape.661

But Mrs Grootboom remained destitute, despite the Court’s judgment

in her favour. She died ‘homeless and penniless’662

. Her obituary is a poignant reminder of both

the enduring need to effectively secure socio-economic rights, and the potential that exists for

dislocation between the work of the courts to this end, and the reality for indigent people:

‘Irene Grootboom was the woman whose name became known around the world for enforcing

the state's obligation to respect socio-economic rights… Grootboom’s death, and the fact that

she died homeless, shows how the legal system and civil society failed her. I am sorry that we

didn’t do enough following up after the judgment was given in her favour. We should have

done more’.663

660


M Mogoeng ‘Twenty years of the South African Constitution: Origins, Aspirations and Delivery’ (2015)

27Singapore Academy of Law Journal 1-16, 12. 662

‘Grootboom dies homeless and penniless’ The Mail & Guardian 8 August 2008: <http://mg.co.za/article/2008-

08-08-grootboom-dies-homeless-and-penniless> (Last accessed 27 July 2016). 663

Ibid.

152

In response to this, Saul & Bond’s frustration around the limitations of the Grootboom

judgment are reflective of many for whom the approach of reasonableness represents an overly

inhibited, managerial, and deferent judicial role:

‘The Court did not have the courage and self-mandate to prescribe the policies and practices

that would be considered of minimal acceptability’.664

While the strength of feeling here is not misplaced, given the gravity of the situation for those

experiencing homelessness, this criticism does betray a lack of understanding of (or perhaps

lack of concern with) the fundamental separation of powers at the heart of the South African

polity. It is tempting to conclude that transformative constitutionalism would be achieved more

deeply and more quickly by more activistic and prescriptive socio-economic rights decisions.

But any gains made may risk being undermined by the loss of constitutional integrity, and

adherence to the foundations of constitutionalism – the rule of law and the separation of

powers - that such judgments would inevitably entail.665

Whatever the merits of the Grootboom judgment, its application of reasonableness, and the

Court’s sensitivity towards separation of powers and illegitimate encroachment into the realms

of policy-making are themes that recur in the subsequent cases discussed below.

4.6.3 Manqele v Durban Transitional Metropolitan Council (2002)666

, and Residents

of Bon Vista Mansions v Southern Metropolitan Local Council (2002)667

Before proceeding to the next Constitutional Court case to be considered, it is worth

considering the juridical problems caused for lower courts, by the eschewal of a minimum core

for socio-economic rights, in favour of a jurisprudence of reasonableness. Mention of the

following two cases is important to this end, but also because both cases relate to the issue of

access to water, and the right of access to sufficient water in Section 27 of the Constitution.

Manqele

Here, the applicant, an unemployed mother with seven dependent children was a tenant in an

apartment owned by the local municipality. The applicant failed to pay for her water services

664

J Saul & P Bond South Africa, The Present as History, from Mrs Ples to Mandela & Marikana ( Jacana, 2014) at

191. 665

M Elliott & R Thomas Public Law (2nd

ed, Oxford University Press, 2014) 33. 666

(6) SA 423 (D&CLD) (Manqele). 667

JOL 9513 (W) (Bon Vista).

153

and so supply to the apartment was disconnected. The applicant petitioned the High Court for

a declaratory order that the disconnection was unlawful and a direction to the respondent (the

municipality) to reinstate and maintain basic water services. She based her petition on her right

to basic water supply as per Section 3 of the WSA (discussed above in Chapter Three). Her

legal council chose not to rely on the applicant’s constitutional right of access to sufficient

water.668

The respondents claimed that at that time there was no quantum applied to the constitutional

right (reiterated in Section 3 of the WSA), which was capable of being enforced. The term

‘sufficient water’ used in the Constitution had not been quantified. Similarly the municipality’s

obligation to provide a ‘basic water supply’, defined in Section 1 of the WSA as ‘the prescribed

minimum standard of water supply services’ had, according to the Court, not been effectively

prescribed. The Court held that prescription had to be by regulation and no regulations existed

at that time as to the extent and manner with which a basic water supply should be realised669

.

Furthermore, the respondents argued that, in the absence of a prescribed quantum for basic

water supply, they had adopted a policy of providing residents with the first six kilolitres of

water per month free. The applicant had far exceeded this amount, which resulted in her water

supply being disconnected.

The applicant’s counsel argued that the WSA must be read in conjunction with the

Constitution and that therefore the right to a basic supply of water must be read as

incorporating at least the amount of water that would meet the Constitutional requirement.670

But the court disagreed:

In the absence of regulations defining the extent of the right of access to a basic water supply, I

have no guidance from the Legislature or Executive to enable me to interpret the content of the

right embodied in s 3 of the Act. The interpretation that the applicant wishes me to place upon

s 3 of the Act, in the absence of prescription of the minimum standard of water supply services

necessary to constitute a basic water supply, requires me to pronounce upon and enforce upon

the respondent the quantity of water that the applicant is entitled to have access to, the quality of

such water and acceptable parameters for ‘access’ to such basic water supply. These are policy

matters, which fall outside the purview of my role and function, and are inextricably linked to

668

The applicant’s decision not to rely on the Constitutional right to water may have been a significant factor in the

failure of her application. In Bon Vista and Mazibuko reliance was put on the Constitutional right of access to

sufficient water, and in both cases the courts provided greater assistance. Even though the Constitutional Court’s

decision refused to uphold the appellants’ appeal in the last instance, the constitutional right was itself affirmed. 669

Regulation GN R 509 of 8 June 2001 has since been promulgated.

670

Paragraph 427A

154

the availability of resources. Given the fact that the prescribed minimum basic water supply has

not yet been promulgated, notwithstanding the commencement of the Water Services Act... it

would seem that such resources are not yet available on the scale required to give national

content to s 3 of the Act.671

Therefore, the conclusion of the Court was that the right upon which the applicant relied was

incomplete and could not be enforced. The Court also remarked on the fact that the applicant

had not limited her family’s water use to the six kilolitres per month provided for free by the

municipality and had therefore had to pay for the additional water used. This, in the Court’s

view, seemed to justify the disconnection and discontinuation of water services. The application

was dismissed and judgment delivered in favour of the respondents.

No discussion was entered into regarding the sufficiency (or otherwise) of 6 kilolitres per

household per month. Rather, the willingness to accept the appropriateness of a particular

volume of water seemed at odds with the court’s explicit reasoning that quantification of water

supply is a matter of policy and outside the court’s purview.

While scant attention was paid to the capacity of the service provider, the case sent a clear

signal that the Court was adamant about maintaining separation of powers, and not straying into

policy matters. This clear positioning of the courts in their traditional and constitutionally

restrained place is perhaps justified (especially since no minimum core for access to sufficient

water had yet been decided). But it also illustrates the limitations of the Court’s role in realising

the protection, promotion and fulfilment of socio-economic rights.

Bon Vista Mansions

The applicants in Bon Vista were residents of an apartment block in Johannesburg. Their water

supply was disconnected following non-payment for water services. An order was sought from

the High Court by the applicants to direct the respondent (the local municipality) to restore

their water supply. The Court granted the order. In setting out the reasons for its decision the

court analysed the right of access to sufficient water, affirming the interpretative value of

international law regarding the role of the State regarding socio-economic rights, with reference

to the ICESCR and its associated General Comments. In particular the State ‘must refrain from

action which would serve to deprive individuals of their rights’,672

and ‘that a violation of the duty

671

Paragraph 427C-F 672

Bon Vista. Paragraph 16.

155

to respect a right arises when the state, through legislative or administrative conduct, deprives

people of the access they enjoy to socio-economic rights’.673

Because the applicants already had existing access to water services, it was held that the

respondent’s disconnection amounted to a breach of the State’s Constitutional duty to respect

the right of access to water.674

The applicants made an urgent interim application to the High

Court in order to have water supply restored for themselves and other residents, pending the

final decision on an application for similar relief that had already been lodged. The Court

granted the urgent application to have water supply restored for themselves and other residents,

directing the respondents (the local municipality) to restore the water supply. The respondents

contended that the applicant did not have the requisite locus standi to bring the application. But

the Court found that, given the urgent nature of the interim application (made in order to

ensure access to water for several residents for several days) the applicant was not required to

follow the usual formalities. The Court reiterated that water services were a ‘basic and essential

service’675

and emphasised the serious consequences to residents’ health if the service was

discontinued.

The Court’s attention then turned to analysing the right of access to sufficient water. The

landmark judgement of Chaskalson P in Makwanyane676

, which affirmed the interpretative value

of international law in the adjudication of socio-economic rights, was particularly persuasive in

the Court’s thinking here.

‘International law is particularly helpful in interpreting the Bill of Rights where the

Constitution uses language similar to that which has been used in international instruments... It

assists in understanding the nature of the duties on the state...’677

The nature of the duties arising on states from the ICESCR, and from its associated General

Comments are twofold. First, the State (or State body, including a municipality such as the

respondent in this case) must refrain from actions that would deprive individuals of their

rights.678

Second, the State has a duty to respect rights and will be said to have violated that duty

if people are deprived access to socio-economic rights that they have hitherto enjoyed.679

This

applied here to a discontinuation of water services that residents had accessed up until this

673

Bon Vista. Paragraph 19. 674

Bon Vista. Paragraph 20. 675

Paragraph 10 676

S v Makwanyane 1995 (3) SA 391 (CC) (at paragraph 35). 677

Bon Vista, paragraph 15 678


Bon Vista, paragraph 19

156

point. Consequently, the decision of the municipality to disconnect water supply was judged to

be in violation of its Constitutional duty to respect the right of access to sufficient water.680

The question then arose as to whether the municipality was justified in their breach. Accepting

that the WSA formed the relevant statutory framework, the Court looked to section 4(3)681

of

the WSA to establish the circumstances under which water services can be limited or

discontinued. The Court described section 4(3) as a deliberately demanding set of

circumstances because of the potentially serious human and health consequences of

terminating water services.682

The respondents were not able to justify their reasons for

disconnection in line with the requirements of section 4(3) and the applicants had shown at

least a prima facie right to continued access to water.

In light of the State’s obligation to ‘respect, protect, promote and fulfill’ each of the rights in the

Bill of Rights, Bon Vista demonstrates the court’s willingness to enforce respect for a socio-

economic right at its current level of realization. By not allowing the applicants to suffer a

discontinuation of water services that they had had access to, their right of access to sufficient

water was maintained. Likewise, the right was afforded protection by the Court’s purposive

application of the relevant legislation. The application of international law here shows its

authoritative importance in domestic judicial reasoning as well as adding substance to the scope

of the right to water and the associated duties of the State. But this was a constrained judgment

in many ways. Again, failure to articulate a minimum core to the right to water limited the

ability of the Court to promote progressive realisation of the right, in a transformative way.

680


WSA Section 4(3): Procedures for the limitation or discontinuation of water services must:

(a) be fair and equitable

(b) provide for reasonable notice of intention to limit or discontinue water services and for an opportunity to make

representations, unless -

(i) other consumers would be prejudiced;

(ii) there is an emergency situation; or

(iii) the consumer has interfered with a limited or discontinued service; and

(c) not result in a person being denied access to basic water services for non-payment, where that person proves, to

the satisfaction of the relevant water services authority, that he or she is unable to pay for basic services. 682

Bon Vista. Paragraph 28.

157

4.6.5 Minister of Health and Others v Treatment Action Campaign and Others (No 2)

(2002)683

Despite the prominence given to the case of Grootboom as ‘a positive precedent for the judicial

enforcement of economic and social rights’684

, arguably it is Treatment Action Campaign (TAC)

that represents the most transformative judgment to-date by the Constitutional Court on socio-

economic rights.

The case concerned the provision of an anti-retroviral drug, nevirapine, which prevents mother-

to-child transmission of the HIV virus during pregnancy and birth. It is estimated that almost

seven million people living in South Africa have HIV, representing a prevalence rate amongst

adults of 19% of the population.685

Given these high figures, the issue of HIV and its treatment

has been an important challenge for the country for many years, despite the fact that at the time

of the TAC case, then President Mbeki’s notorious ‘Aids denialism’ sought to repress the use

of HIV/Aids medication.686

Several pharmaceutical companies offered nevirapine to the South African government free of

charge for a five-year period. But the government confined the drug’s use to pilot sites, denying

most mothers access to the drug. TAC, a coalition of civil society, medical practitioners,

activists and others, challenged this decision, arguing that it violated Section 27 of the

Constitution, the right of access to healthcare services, for those mothers not supplied with the

drug. Additionally, the Institute for Democracy in South Africa, and the Community Law

Centre acted as amicus curiae. As discussed above regarding the scope of Section 27 in

Soobramoney, the right of access to healthcare services does not require immediate or

unconditional fulfilment:

Section 27 (1) Everyone has the right to have access to - (a) health care services, including

reproductive health care; (b) sufficient food and water; (c) social security, including, if they are

unable to support themselves and their dependents, appropriate social assistance.

(2) The State must take reasonable legislative and other measures, within its available resources,

to achieve the progressive realization of each of these rights.

683

(CCT8/02) [2002] ZACC 15; 2002 (5) SA 721; 2002 (10) BCLR 1033 (5 July 2002) 684

S Liebenberg ‘The right to social assistance: The implications of Grootboom for policy reform in South Africa’

(2001) 17 South African Journal of Human Rights, 232. 685

Statistics from UNAIDS <http://www.unaids.org/en/regionscountries/countries/southafrica> (Last accessed 27

July 2016). 686

‘Mbeki AIDS denial cost 300,000 deaths’ The Guardian 26 November 2008. Available at:

<http://www.theguardian.com/world/2008/nov/26/aids-south-africa> (Last accessed 27 July 2016).

158

(3) No-one may be refused emergency medical treatment.

Following the Constitutional Court’s approach in Grootboom, the High Court in TAC asked

whether the government had taken reasonable measures, within its available resources, to

progressively realise the right. The High Court concluded that the government had not acted

reasonably in this regard:

‘More specifically the finding was that the government had acted unreasonably in (a) refusing to

make an antiretroviral drug called nevirapine available in the public sector where the attending

doctor considered it medically indicated and (b) not setting out a timeframe for a national

programme to prevent mother-to-child transmission of HIV.’687

The government was consequently ordered by the High Court to make nevirapine available in

public health centres across the country. The government appealed this order before the

Constitutional Court. The Court referred to both Soobramoney and Grootboom in its analysis

of the State’s obligations as being grounded in a social and historical context.688

It also analysed

amicis’ argument that Section 27(1) established an individual positive right, and has a minimum

core to which everyone is entitled.689

But, following Grootboom again, the Court decided that

Section 27(1) and (2) must be read together in order to determine an individual’s rights and

corresponding State obligations:

‘A purposive reading of sections 26 and 27 does not lead to any other conclusion. It is

impossible to give everyone access even to a “core” service immediately. All that is possible, and

all that can be expected of the state, is that it act reasonably to provide access to the socio-

economic rights identified in sections 26 and 27 on a progressive basis.’690

The minimum core approach was therefore explicitly rejected for a second time. The Court

then proceeded to describe the issue before it as follows:

‘The question in the present case is not therefore whether socio-economic rights are justiciable.

Clearly they are. The question is whether the applicants have shown that the measures adopted

by the government to provide access to healthcare services for HIV-positive mothers and their

new-born babies falls short of its obligations under the Constitution.’691

687

Minister of Health and Others v Treatment Action Campaign and Others (No 2) (CCT8/02) [2002] ZACC 15.

Paragraph 2. 688

Ibid Paragraph 24. 689

Ibid Paragraphs 26-39. 690


Ibid Paragraph 25.

159

Satisfied that answering this question was within the Court’s purview, and eschewing a

minimum core approach to doing so, the Court applied its jurisprudence of reasonableness to

the government’s policy. The government cited four reasons for restricting the use of

nevirapine to test sites. First, it was concerned that, despite being able to provide the drug itself,

it may not be able to provide all users with a ‘comprehensive package’692

including additional

information, counselling, and materials: Nevirapine is usually effective when provided at birth,

but a child can also contract HIV when breast-fed. Therefore the government submitted that

they would need to provide mothers with appropriate formulae milk as a substitute. Second,

some mothers and/or children may show resistance to the drug in the future. Third, the

government raised concern about the safety of the medicine (although medical trials show that

only prolonged administration of the drug can lead to side effects). The fourth concern was the

lack of appropriately trained staff and budgetary constraints.693

Rejecting each of these reasons in turn, the Court concluded that:

‘the policy of confining nevirapine to research and training sites fails to address the needs of

mothers and their new-born children who do not have access to these sites. It fails to distinguish

between the evaluation of programmes for reducing mother-to-child transmission and the need

to provide access to healthcare services required by those who do not have access to the sites.’694

The government’s policy was therefore deemed unreasonable, since in light of Grootboom, in

order to be reasonable:

‘measures cannot leave out of account the degree and extent of the denial of the right they

endeavour to realise. Those whose needs are the most urgent and whose ability to enjoy all

rights therefore is most in peril, must not be ignored by the measures aimed at achieving

realisation of the right.’695

The Court held that the government’s policy excluded those who could reasonably be including

within the programme. The government was ordered to make nevirapine available nationwide

in hospitals and clinics, and to take reasonable measures to increase the reach of counselling

and testing services across the public health sector.696

The consequences of this decision have been positive and far-reaching in the fight against the

HIV/Aids pandemic. Following the judgment, nevirapine was swiftly made available in public

692


Ibid Paragraphs 51-54. 694



Ibid Paragraph 135.

160

health centres. In 2015 more than two and a half million people were using anti-retrovirals –

more than in any other country.697

The implications of the TAC judgment are also significant for appraising the Constitutional

Court’s willingness and ability to give transformative effect to socio-economic rights. Perhaps

more clearly than was the case in Grootboom, the Court’s consistent application of a

reasonableness test for government policy, generated a thorough reconsideration of the

particular policy in question, which quickly improved many more people’s experience of their

right to healthcare services. Yet this transformative success was achieved without defining a

minimum core for Section 27, which according to the Court’s own constitutional sensibilities,

would inevitably have transgressed beyond the Court’s remit of review and interpretation,

towards policy-creation.

But despite retaining such a position of constitutional deference, the Court’s order in TAC was

both specific and prescriptive in its requirements. Arguably to prescribe such a fundamental

expansion of antiretroviral therapies across the country, complete with counselling and

additional services, represents the imposition of a de facto policy upon government by the

Court. Here, in the author’s opinion, the Constitutional Court succeeded in balancing the

competing requirements of constitutionalism: for transformative action, and appropriate

deference to the executive. Thus the order can be read as drawing the outer contours of a new

and reasonable policy, while leaving government free to decide its interior topography. The

final clauses of the Court’s order are pertinent here:

‘the orders made… do not preclude government from adapting its policy in a manner consistent

with the Constitution if equally appropriate or better methods become available to it.’698

The next case to be considered is the most directly relevant to the focus of this thesis. As such,

the following analysis concentrates not only on the Constitutional Court’s interpretation of

socio-economic rights, and specifically the right of access to sufficient water, but also on the

interpretation provided by the High Court, and the Supreme Court of Appeal. Together, the

judgments in this case reveal the scope and limitations of using the right of access to sufficient

water to achieve the goal that this thesis sets out to examine: how to realise access to sufficient

water for everyone in South Africa.

697


Singapore Academy of Law Journal 1-16, 11. 698

Minister of Health and Others v Treatment Action Campaign and Others (No 2) (CCT8/02) [2002] ZACC 15.

Paragraph 135.

161

4.6.6 Mazibuko and Others v City of Johannesburg and Others (2010)699

The context for consideration of the right of access to water in South Africa has been discussed

at length in Chapter Three. The Constitutional Court, in Mazibuko’s opening paragraphs

provides an apposite summary of this context:

Although rain falls everywhere, access to water has long been grossly unequal. This inequality is

evident in South Africa. While piped water is plentifully available to mines, industries, some

large farms and wealthy families, millions of people, especially women, spend hours laboriously

collecting their daily supply of water from streams, pools and distant taps … despite the

significant improvement in the first fifteen years of democratic government, deep inequality

remains and for many the task of obtaining sufficient water for their families remains a tiring

daily burden. The achievement of equality, one of the founding values of our Constitution, will

not be accomplished while water is abundantly available to the wealthy, but not to the poor.700

Mazibuko was first heard in the Witswaterand High Court and was brought by a group of

residents from the Phiri area of Soweto, near Johannesburg.701

It challenged the legality of

installing pre-payment water meters in light of the constitutional right to sufficient water.

Installation was undertaken by the City of Johannesburg and its water company, Johannesburg

Water in response to acute water losses in Soweto as a result of corroded pipes, an inaccurate

tariff system (that meant more water was used than was predicted to be necessary) and a ‘culture

of non-payment’ for water services that had ‘arisen originally as part of the resistance to

apartheid local government’702

.

The case examined the obligations of the City of Johannesburg and Johannesburg Water

regarding access to water and the supply of free water for residents who cannot afford to pay. It

was contended that since pre-payment water meters, by design, require users to pay for water in

advance, access to sufficient water is curtailed if users cannot afford to pre-pay. Such a situation

was commonplace for Phiri residents and was raised as incompatible with the constitutional

right of access to sufficient water. The WSA’s quantification of sufficient water as a minimum

standard of 25 lpd was directly challenged in this case on the basis that what is a sufficient

quantity of water depends on the requirements of users in particular social circumstances. For

instance people using waterborne sanitation require a greater volume of water to support life

699

(3) BCLR 239 (CC). 700

Mazibuko and Others v City of Johannesburg and Others 2010 (3) BCLR 239 (CC), par 2. 701

Mazibuko and others v City of Johannesburg and others (Centre on Housing Rights & Evictions as amicus

curiae) [2008] JOL 21829 (W). Hereafter Mazibuko (W). 702

Mazibuko and others v City of Johannesburg and others [2009] JOL 24351 (CC). Hereafter Mazibuko (CC).

Paragraph 166.

162

and personal hygiene than those using pit latrines.703

The decision of the High Court put great

emphasis on the need to redress past injustices (as a result of apartheid policies) and the dire

social and material state of many Phiri residents, described as ‘poor, uneducated, unemployed

and ravaged by HIV/AIDS’.704

In determining the applicants’ grounds, the High Court looked to General Comment Number

15 of the United Nations Committee on Economic, Social and Cultural Rights.705

Applying the

General Comment, the court’s view was that ‘[T]he State is under an obligation to provide the

poor with the necessary water and water facilities on a non-discriminatory basis’.706

Moreover, the progressive realisation of the constitutional right of access to sufficient water

meant that:

Retrogressive measures taken by the state are prohibited. If such retrogressive measures are

taken, the onus is on the state to prove that such retrogressive measures are justified with

reference to the totality of the rights provided for in the Covenant707

. The state is obliged to

respect, protect and fulfil the right to water.708

The installation of prepayment meters was held to be just such a retrogressive step, preventing

residents from access to sufficient water that they had previously enjoyed (before the

prepayment meters, Phiri residents had access to a constant supply of water - despite many

accruing arrears as a result709

). The retrogressive step was taken without adequate justification.

It was held that, given the particular needs of the Phiri community (including the need to use

waterborne sewerage) a volume of 50 lpd would be a more appropriate quantification of

sufficient water than the statutory 25 lpd limit. Satisfied that the respondent could provide this

703

This is particularly pertinent to the interpretation of sufficient water in the Constitution since section 27 links

food and water: ‘Everyone has the right to have access to- (b) sufficient food and water’. Also, since sanitation is not

listed in section 27 of the Constitution, but is recognised as a right in the Water Services Act (section 3(1)), the

volume of water that is sufficient must depend on the type of sanitation system being used. 704

Mazibuko, (W) Paragraph 5 705

Ibid at 106. 706

Mazibuko, (W) Paragraph 36. 707



(1966). Hereafter ICESCR. 708


Mazibuko, (W) Note: Prior to installation of pre-payment meters and the associated improvements made to

water pipes as part of the City’s water services improvement project in Soweto, ‘Operation Gcin’amanzi’, water

services were poor, but the volume of water available was unlimited (except when affected by intermittent technical

problems).

163

increased amount ‘without restraining its capacity on water and its financial resources’710

the High

Court decided wholly in the applicants’ favour.

The City of Johannesburg and Johannesburg Water appealed to the South African Supreme

Court of Appeal in February 2009.711

The quantity amounting to sufficient water for Phiri

residents was reduced on appeal to 42 lpd. But the High Court’s approach was otherwise

upheld, and the City of Johannesburg and Johannesburg Water were directed to formulate a

revised water policy accordingly.712

Mazibuko in the High Court and Supreme Court of Appeal was heralded as an important

milestone in socio-economic jurisprudence in South Africa713

. It showed the courts’ willingness

to push the legislature towards concrete manifestations of constitutional rights and not to allow

the ‘progressive realization’ of these rights to result in unconstitutional policies. The impetus to

promote and fulfill the right of access to sufficient water was clearly discernible (particularly in

Tsoka J’s High Court judgment714

) in the acceptance of the need for sufficient water to be a

quantity that promotes dignity and goes beyond the minimum of Free Basic Water already

set.715

The potential implications of Mazibuko for people living in similar situations to the Phiri

residents were significant. Both decisions demonstrated the courts’ engagement with polycentric

matters in order to help realize socio-economic Constitutional rights more quickly and more

explicitly than would otherwise be the case. But the environmental implications of Mazibuko

may have been significant too, potentially doubling the demand for water from a significant

portion of the population, in a ‘water-stressed’ country716

.

However, in September 2009 the Phiri residents appealed to the Constitutional Court

(unhappy with the Supreme Court of Appeal’s order to reduce the amount of water deemed to

be sufficient from 50 to 42 lpd). This was the first time the Constitutional Court had considered

the proper interpretation of the right of access to sufficient water. The orders made by the High

Court and Supreme Court of Appeal respectively were set aside.

710


City of Johannesburg & others v Mazibuko & others (Centre on Housing Rights & Evictions as amicus curiae)

[2009] JOL 23337 (SCA). Hereafter Mazibuko (SCA). 712

Mazibuko, (SCA). Summary. Note, because the SCA found that 42 lpd was the quantity of sufficient water, not

50 lpd as decided by the High Court, the appeal was upheld. 713

L J van Rensberg ‘The Right of Access to Adequate Water: Discussion of Mazibuko v The City of Johannesburg

Case No 13865/06’ (2008) 3 Stellenbosch Law Review, 434.

714

See generally Mazibuko (W). 715

Mazibuko (W). Paragraph 1. 716

M Kidd Environmental Law (Juta & Co. Ltd, 2008) 64.

164

The Constitutional Court held that the City of Johannesburg’s Free Basic Water policy was not

in conflict with Section 27 of the Constitution or Section 11 of the Water Services Act717

and the

installation of pre-paid water meters was lawful. The court was satisfied that while the Free

Basic Water Policy was flawed, it was consistent with the constitutional right of access to

sufficient water.718

This was particularly so since the City of Johannesburg had continually

amended its Free Basic Water Policy during the course of the litigation.719

Consequently the

applicants’ appeal was dismissed, and the installation of prepaid water meters in Phiri was

affirmed as compatible with Section 27 of the Constitution.720

Crucial to an understanding of this judgment is the guiding role that reasonableness has played

in the Constitutional Court’s jurisprudence since Grootboom, discussed above at length above.

Although Grootboom related specifically to the constitutional right to adequate housing,721

the

standard established in this case, and followed in TAC, required that government action in

relation to socio-economic entitlements generally, must be reasonable.

The principle of reasonableness was applied to the Constitutional Court’s judgment in

Mazibuko as follows: First, the nature of the right of access to sufficient water was accepted as

being one of progressive realization. Second, the actions of the respondents (namely the City of

Johannesburg, and Johannesburg Water) in constantly reviewing their Free Basic Water Policy,

and by providing on occasion for additional free water allowance as well as relief from other

municipal charges, together represent reasonable actions in relation to the constitutional right to

water, notwithstanding the respondents’ continuing obligation towards progressive realization.722

The clear implication here is that while the actions and policy of the respondents were deemed

reasonable at the time of the judgment, they must not be allowed to solidify in to an established

717

Water Services Act 1997 (108 of 1997), the duty on the part of the Water Services Authorities to provide access

to water services is clearly spelled out in section 11(1):

‘Every water service authority has a duty to all consumers or potential consumers in its area of jurisdiction to

progressively ensure efficient, affordable, economical and sustainable access to water services.’

Note: While this duty is subject to a number of conditions including inter alia the availability of resources and the

duty of consumers to pay reasonable charges (11(2)), the Water Services Act entrenched this duty by stating in

section 11(4) that a water services authority may not unreasonably refuse to give access to water services to a

consumer or potential consumer in its area of jurisdiction. Further in section 11(5), the act states that in emergency

situations a water service authority must take reasonable steps to provide basic water supply and basic sanitation

services to any person within its jurisdiction and may do so at the cost of that authority.

718

Mazibuko (CC). Paragraph 163. 719



Section 26 Constitution of the Republic of South Africa, No. 108 of 1996. 722

Mazibuko (CC). Paragraph 168.

165

standard. Rather, the impetus of progressive realization must engender continual revision.723

This application of reasonableness directly contrasts with the alternative approach to

adjudicating on socio-economic rights, followed by the lower courts in Mazibuko: namely

establishing a minimum core obligation for the state to fulfil. Establishing the minimum

quantum of water to be deemed sufficient, by reference to international standards and

domestic, context-specific evidence724

would seem an appropriate approach to interpreting the

constitutional right to water. So it is important to note the reasons that the Constitutional Court

raised to vindicate their continued, deliberate and explicit rejection of a minimum core

approach, in favour of reasonableness.

First, a constitutional defense can be made for the Court’s approach here. It reflects an impetus

to maintain a clear separation of powers and to refrain from encroaching on matters of resource

allocation, under the purview of the legislature and executive.725

Arguably such a ‘restrained and

focused role for the Courts’726

may help achieve ‘appropriate constitutional balance’727

by

avoiding direct incursion into budgetary and policy priorities:

The Constitution does not require government to be held to an impossible standard of

perfection. Nor does it require courts to take over the tasks that in a democracy should properly

be reserved for the democratic arms of government.728

Second, the argument is made that quantifying a minimum core requirement here would

detract from the duty imposed on government to continually review its policies to ensure the

progressive realization of the right.729

Indeed, a situation could be envisaged where a defined

minimum quantum of water may impede rights holders from receiving more than this quantum

in keeping with the provider’s capacity to supply. In order to avoid this, the Court reiterates that

it is for government to set the target it wishes to achieve, and for the Courts to submit such a

723


Mazibuko (W). Paragraphs 128 and 172. 725

This reflects the approach of the High Court in Manqele V Durban Transitional Metropolitan Council 2002 (6)

SA 423 (D&CLD). The volume of water deemed sufficient for the purposes of the Constitution section 27 and the

WSA section 3 had not yet been prescribed (The WSA had been enacted, but the associated regulations [GN R

509 of 8 June 2001] had not been promulgated). The court held that the minimum volume of water must be

prescribed by regulation. In the absence of the regulation the applicant relied on an incomplete right, rendering it

unenforceable. Determining sufficient water was ‘a policy matter which falls outside the purview of the role and

function of the court and is inextricably linked to the availability of resources’. Paragraph 427. 726

Minister of Health and Others v Treatment Action Campaign and Others [2002] ZACC 15; 2002 (5) SA 721

(CC); 2002 (10) BCLR 1033 (CC) (hereafter Treatment Action Campaign No. 2). Paragraph 38. 727

Treatment Action Campaign No. 2. Paragraph 38. 728



166

target to the standard of reasonableness.730

It is plausible to suggest that defining a (static) minimum core content to the right to water may

have negative practical consequences in the future. Regarding this, the decisions of the High

Court and Supreme Court of Appeal, to quantify the content of the right, without clarifying how

a minimum core content relates to progressive realization, was unfortunate.731

But it seems less

plausible that a minimum core approach is necessarily incompatible with reasonable,

progressive realization. Indeed there seems to be scope here to explore a mutually reinforcing

model for these two principles, whereby a provisional minimum core is established, based on

current capacity, but coupled with the requirement to continually pursue a fuller realisation of

the right, to the extent that available resources allow. Such a hybrid approach would

presumably require the periodic redefinition of the minimum core to reflect the progress made

in realizing the right to date. Indeed, the degree of complementarity or antagonism between a

reasonableness approach to socio-economic rights and a minimum core approach has been

considered at length elsewhere, and remains contested.732

Third, it is asserted that a jurisprudence of reasonableness encourages a continuous

contestation for the content of socio-economic rights, enabling ‘citizens to hold government

accountable not only through the ballot box but also, in a different way, through litigation’:733

Citizens and the courts combining in a dynamic, collaborative endeavour to negotiate what

content the right (to water, in this case) should have at any one point in time. Indeed, the

product of such litigation, according to O’Regan J, is to foster ‘a form of participative

democracy’.734

The clear implication here is that if the Court instead set an ultimate standard for

such rights, the accountability of government would be affected, and citizens’ role in the

democratic process would be diminished. To this end the Constitutional Court maintained that

litigation regarding the positive obligations of socio-economic rights was an important element

of government accountability, concomitant with the founding provisions of the Constitution, ‘to

ensure accountability, responsiveness and openness’.735

Such litigation also complements the

right of access to the courts in Section 34 of the Constitution, which Lindiwe Mazibuko and

others were entitled to as litigants:

730



D Bilchitz ‘Giving socio-economic rights teeth: The minimum core and its importance’ (2002) 119 South

African Law Journal 484-501. 733



Section 1 (d) Constitution of the Republic of South Africa, No. 108 of 1996.

167

‘Everyone has the right to have any dispute that can be resolved by the application of law decided

in a fair public hearing before a court or, where appropriate, another independent and impartial

tribunal or forum’. 736

Reading Sections 1 and 34 together, the requirements of accountability, responsiveness and

openness, and that of a fair public hearing, reflect much of the content ascribed by Bernstein to

the value of fairness (‘accountability, representation, and responsibility, as well as distributive

justice’737

). When considered in the light of these standards, the Constitutional Court’s judgment

in Mazibuko has clearly facilitated government accountability by requiring ‘a detailed

accounting from government’.738

Furthermore, it has supported the representation of the

applicants, by allowing their appeal, and clarified the responsibility of the City of Johannesburg,

and Johannesburg Water respectively. However, whether the judgment also achieved

distributive justice remains contentious.

A personal insight

In 2014, I interviewed Justice Yacoob, who provided the lead judgment in Grootboom, and in

so doing, first articulated the Constitutional Court’s jurisprudence of reasonableness. Justice

Yacoob was not on the bench that heard Mazibuko. I asked him what he thought of the

judgment, and of the Court’s continued rejection of a minimum core approach, in favour of

reasonableness. His thoughts, although shared after retiring from the Constitutional Court, are

insightful, particularly in as much as they suggest that the Court’s judgment, though

disappointing for many, represents the extent of what could be expected from an appropriately

deferent (or restrained) court within the confines of a constitutional democracy:

ZY: I didn’t sit in Mazibuko because I was sick, but people invited me to talk at a conference on

Mazibuko thinking that because I didn’t sit in it I would be against it. And I must tell you, I’m

completely for Mazibuko and I’m quite happy now that I’m not a judge I can write an article

saying why Mazibuko is right, and why all those people who are against Mazibuko are quite

wrong… I think that all the judgments of our court while I was there have been consistent with

Grootboom, and I think in broad terms that Mazibuko would be the case that many people

knew, is a bad example because it is really invidious in all the circumstances relating to water to

say how many kilos people should have.

736

Section 34 Constitution of the Republic of South Africa, No. 108 of 1996.

737

B Steven ‘Globalization and the Requirements of ‘Good’ Environmental Governance’ (2005) 4 (3/4)

Perspectives on Global Development and Technology 645-679, 652. 738


168

NC: Invidious in what way, because it risks the court overstepping the mark into policy, or

what?

ZY: Invidious because we are not in a minimum quota then beyond the reasonableness test and

the only issue was whether the water being supplied in all the circumstances at that time was

reasonable. Not whether a certain amount was reasonable. And that we can’t determine, and I

think that the answer to that question should have been all the circumstances taken into

account, everything, that the water supplied at that time could not be said to be unreasonable.739

Much work has been done to quantify the minimum quantum of water required for daily life in

various conditions.740

So it is not entirely clear why Yacoob J considered such quantification as

automatically negative, other than for the reasons identified early: namely that such an

establishment of a minimum core would involve encroachment by the Court on the purview of

government. Furthermore, quantifying what counts as ‘sufficient water’ may possibly risk losing

the ‘progressive realisation’ aspect of the right. But it is asserted here that this is not an

inevitable consequence of adopting a minimum core. Indeed, designating the core as being the

minimum required, arguably provides impetus to move forward from this point. To this end, as

mentioned earlier, it would seem sensible to periodically ‘ratchet up’ such a minimum core, in

order to promote progressive realisation, and to ensure that the progress that has been achieved

is not lost.

The reasons set forth by the Constitutional Court in Mazibuko can be summarized as

delivering a constitutionally deferent, pragmatic, and conditional judgment that the actions of

the water service providers regarding the claimant’s right to water had been reasonable.

Scholarly disagreement persists around the judgment,741

and its potential consequences for

effective water governance are considered below at 4.7. The explicit restatement of

reasonableness as the appropriate approach to socio-economic rights litigation is perhaps

understandable in a country with limited resources and manifold social and economic

problems. Nevertheless, it emphasizes the tension at the heart of the justiciability of socio-

economic rights, visible in each of the preceding cases: the pragmatism of progressive

739


See generally PH Gleick ‘The Human Right to Water’ (1998) 1 Water Policy. 741

See variously L J Kotze ‘Phiri, the plight of the poor and the perils of climate change: time to rethink

environmental and socio-economic rights in South Africa?’ (2010) 1/2 Journal of Human Rights and the

Environment 135-160; J Dugard ‘Can Human Rights Transcend the Commercialization of Water in South Africa?

Soweto’s Legal Fight for an Equitable Water Policy’ (2010) Review of Radical Political Economics 1-20; L Jansen

van Rensburg ‘The Right of Access to Adequate Water [Discussion of Mazibuko v the City of Johannesburg Case

no 13865/06]’ (2008) 3 Stellenbosch Law Review 415-435; P Bond and J Dugard ‘The Case of Johannesburg

Water: What Really Happened at the Pre-paid ‘Parish Pump’’ (2008) 12(1) Law Democracy and Development 1-

28.

169

realization versus the necessity of immediate fulfillment. To those Phiri residents now denied a

quantum of water commensurate with their needs, and necessary for their dignity, their right to

water rings hollow.

4.7 Critique

Throughout the preceding case analysis various conceptual lenses have been hinted at, through

which the Court’s jurisprudence may be better understood. These lenses have been described

as ‘judicial managerialism’, ‘judicial deference’, and ‘transformative constitutionalism’. The

purpose of this section is to reflect upon the critical value of these lenses, in order to reach

some instructive conclusions regarding the appropriate role that the Constitutional Court could

play in helping to achieve the goal of access to sufficient water, by adjudicating on the right of

access to sufficient water.

4.7.1 ‘Judicial Managerialism’ or (legitimate) judicial restraint?

The exasperation behind the public statement issued by the Coalition Against Water

Privatisation, in response to the final Mazibuko judgment (quoted at the beginning of this

chapter) is palpable. For the vulnerable litigants, their amicus curiae, activists and campaigners

in academia, and in broader civil society, the Court’s decision to affirm as reasonable, the

installation of prepayment meters, and to reject calls to define a minimum core for ‘sufficient

water’, represented the most constrained example of the judiciary’s deference to the executive

as the sole appropriate decision maker on resource allocation. Indeed, considered in light of

the theory on institutional approaches to judicial restraint, it appears that the judiciary afforded

themselves an extremely small discretionary area of judgment. In activist circles it has also

come to symbolise the abject failure of the Court to grasp the transformative potential of the

Bill of Rights, and to take concrete steps towards its realisation, instead lapsing into conservative

inertia and mechanical jurisprudence. As activist and academic Jackie Dugard notes, Mazibuko

was about more than securing the right of access to sufficient water for the people of Phiri:

‘[T]he case has always represented a challenge to the degradation of the progressive potential of

the Freedom Charter,742

the RDP,743

and the human rights framework, by local government

technocrats who have come to dominate South African hydro-politics’.744

742

See discussion in Chapter Three at 3.3.1. 743

See discussion in Chapter Three at 3.2.

170

As such, it was hoped that the Constitutional Court would champion this challenge, and

support a new and progressive chapter for water justice. Because of this weight of expectation,

the actual judgment was inevitably a grave disappointment. But, without denying this, it is

important to review the Mazibuko decision in light of the previous decisions of Soobramoney,

Grootboom and TAC, in order to reflect on the degree of consistency that exists across the

Court’s judgments. While this does not reduce the impetus for greater meaningful realisation of

the right to water than Mazibuko delivered, arguably it does push us to consider other avenues

for sustainable, equitable water delivery.

As Justice Yacoob was keen to emphasise, arguably the Constitutional Court’s approach to

socio-economic rights, has been consistent; developing and applying a test of reasonableness

with which to determine the constitutional legitimacy of State (in)action. Moreover, since

Grootboom, if government action has been deemed unreasonable, the Court’s remedial

jurisprudence has also been consistent; broadly stipulating the necessary requirements to satisfy

the State’s obligation to take reasonable legislative and other measures regarding the particular

right at issue, without being overly-prescriptive regarding the minutiae of such requirements.

Contrasting the Court’s orders in Makwanyane and in Fourie respectively, it can be clearly seen

that, after an initially direct intervention, the Court chose to restrain itself from direct legislative

involvement, deferring instead to the government (and Parliament). Similarly, while the orders

in Grootboom and TAC directed government policy and activity towards particular ends, in

both instances government retained the policy-making role. Indeed, had the Court’s decision in

Mazibuko been otherwise, and the supplier’s actions had been found to be unreasonable, it is

highly likely that a similarly ‘light touch’ order would have followed (eschewing the approach of

the High Court and Supreme Court of Appeal to set a particular quantum for sufficient water).

Nevertheless, despite claims of consistency, the Mazibuko judgment can be seen to

demonstrate a managerial (or technocratic) approach to socio-economic rights adjudication, at

odds with the tenor in previous cases. The fact that Johannesburg Water’s ability to increase

water supply was not scrutinised, nor was sufficient consideration given to issues of

environmental sustainability, suggests that the Court’s conclusion that the State’s actions were

reasonable was reached without a sufficiently deep appraisal of all the relevant factors. To

return to Yacoob J’s schema, outlined in Grootboom, determination of the reasonableness or

otherwise of the measures taken by the State must be made with regards to the requirements

744


for an Equitable Water Policy’ (2010) Review of Radical Political Economics 1-20, 15.

171

for progressive realisation within available resources. While much was made of the progressive

(i.e. progressing) quality of the water supplier’s policy (being periodically reappraised), too little

attention was paid to establishing what constituted available resources in this context. While

available water resources are clearly relevant to such an appraisal, there would also be likely

consequences in relation to financial and infrastructural resources. On this point, it is important

to provide some perspective to the ‘available resources’ qualification encountered regarding

each of the socio-economic rights discussed.

Recent figures remind us that public finances in South Africa are consistently dwarfed by the

scale and cost of poverty and inequality in the country. 40% of the population is categorised as

destitute. Welfare recipients outnumber taxpayers by three to one, and with a Gini coefficient745

of 0.7%, South Africa has recently surpassed Brazil as the most unequal emerging State.746

The

immediate implications of this are that the resources available to the State with which to realise

significant improvements in people’s access to water are limited. Here, Roux’s sceptical reading

of Makwanyane and Fourie, discussed above, offers an insightful perspective from which to

consider the ultimate Mazibuko judgment: Ever mindful of the perceived need to maintain an

appropriate balance in its relationship with government, the Constitutional Court not only

refrained from setting or affirming a minimum core for the right to water, but also avoided

imposing a multidimensional test for reasonableness (one which seriously investigated the

relevant social, economic and environmental factors), for fear of imposing (overly) significant

obligations upon the State. If such an appraisal is at all accurate, it is not to say that the Court’s

judgment here was reached consciously, for existential reasons, much less Machiavellian ones.

Rather, the high degree of deference shown towards government, and the consequently

managerial approach to adjudicating on the right to water evident in this judgment, together

suggest a systemic/institutional limitation to the transformative ability of the Courts: interpreting

rights in their current, qualified form, against a backdrop of finite resources and seemingly

infinite needs.

4.7.2 Transformative Constitutionalism

At the risk of repeating the discussion at the beginning of this chapter, the dawn of the

democratic era, and the adoption of a new Constitution and Constitutional Court, provisioned

with an expansive and justicable Bill of Rights, signalled a new era of constitutionalism in the

745

The Gini coefficient represents the income distribution of a nation's residents, and is the most commonly used

measure of inequality. See <http://data.worldbank.org/indicator/SI.POV.GINI> (Last accessed 27 July 2016). 746

C Hartman et al ‘Sustainable Governance in the BRICS; Country Report South Africa 2 (2013). Available at:

<http://sgi-network.org/brics/pdf/Country%20Report%20South%20Africa.pdf> (last accessed 27 July 2016).

172

country, and more specifically, an era of social and economic transformation following the

recent political changes. Building on the argument above regarding the consistency of the

Court’s approach to socio-economic rights, a shallow appraisal of the Court’s work over the last

two decades may suggest that the Court has gradually retreated from its initial activist role,

towards a more constrained, managerial approach. Such an analysis, it is argued, focuses too

much on the outcomes of the various seminal cases considered above, rather than on the

Court’s careful crafting of a consistent and distinctive jurisprudence. Doubtless at first glance

the decision in Grootboom, ordering the government to build houses for the poor, or, in TAC,

requiring antiretroviral drugs to be made available to all who need them, indicate a strong

commitment to pursuing positive socio-economic transformation through rights interpretation.

Equally it is not surprising that in contrast, Mazibuko’s failure to secure access to sufficient

water for many, has been dismissed as being constrained at best. But even at such a superficial

analytical level, there remains a transformative aura around the Court, discernable both in

certain decisions, and in its very structure. Christiansen reminds us of the latent transformative

energy in the Court’s generous locus standi provisions, outlined in Section 38 of the

Constitution:

Anyone listed in this section has the right to approach a competent court, alleging that a right in the

Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including

a declaration of rights. The persons who may approach a court are—

(a) anyone acting in their own interest;

(b) anyone acting on behalf of another person who cannot act in their own name;

(c) anyone acting as a member of, or in the interest of, a group or class of persons;

(d) anyone acting in the public interest; and

(e) an association acting in the interest of its members.

Extending beyond the usual classes of persons with immediate remediable harm, such broad

standing facilitates greater access to the court system than is the case in most jurisdictions.747

Similarly, inclusion of socio-economic rights that are justiciable, provides the Court with tools

with which to affect transformation, and so distinguishes the Court’s role and potential from

that of similar courts in other countries.748

747


Authority to Advance Substantive Justice’ (2010) 13 Journal of Gender, Race & Justice, 575-614, 582. 748

Ibid 585. Cf. US Supreme Court.

173

4.7.3 ‘Liminal Constitutionalism’

In anthropology, a liminal space is an intermediate stage between two, more fixed states, for

instance the space between life and death.749

Liminal constitutionalism, it is suggested, is a useful

idea to describe the role the Constitutional Court has adopted in relation to socio-economic

rights adjudication. It applies the concept of liminality to the changing role of the Court:

variously pushed and pulled by demands towards driving substantive transformation through

expansive interpretations, and towards more constrained, managerial and deferential

adjudication. These demands, which are described in the preceding discussion, are labelled

‘Transformative Constitutionalism’ and ‘Judicial Managerialism’.

Applied in this context, the author suggests that the Constitutional Court’s jurisprudence can be

understood by reference to such a liminal space, between an expansive and a constrained

application of socio-economic rights. Furthermore, it is asserted that this liminal space must

necessarily be an intermediate one, before collapsing back towards one or other of the fixed

states outlined above. Despite initial enthusiasm for a more overtly transformative Court, and

despite evidence that the Court remains more transformative (or at least more capable of

affecting transformation) than its foreign counterparts, it is difficult to imagine how this could be

maintained in the long term, if the doctrine of trias politica is to be respected. Therefore,

recourse to a more constitutionally appropriate degree of judicial restraint (which detractors

may call ‘managerialism’) would seem to be likely. Adopting an institutional approach to

judicial restraint may have encouraged judges to take an expansive view of what is reviewable

and justiciable, within a ‘discretionary area of judgment’ less inhibited by doctrinal prescription,

than would more formalist approaches. But in the particular context of South Africa, this

‘discretionary area’, or ‘space’ should not be seen as being fixed. Rather, the degree of

discretion that the judiciary afford themselves (and consequently the degree of restraint shown)

is better understood as representing a temporary, flexible, or liminal space. Plotted on top of

the preceding case discussions, the concept of liminal constitutionalism reveals how the

Constitutional Court has generally adopted a constitutionally appropriate (although often

disappointing) degree of judicial restraint since its inception, despite the fact that the

transformative activism shown by the Court has changed (and arguably diminished).

It can be claimed that what constitutes appropriate judicial restraint may change as the country’s

political and judicial systems evolve, and as people’s material conditions slowly improve. But,

749

D Oistein-Endsjo ‘To lock up Eleusis: A question of liminal space’ (2000) 47/4 International Review of the

History of Religions 351-386, 354.

174

perhaps more radically, in relation to the issue of access to sufficient water, it is asserted that

discussion of transformative versus managerial roles, or minimum core versus reasonableness,

continues to take place within the dominant paradigm, that prioritises water as a commodity.

Therefore it may be that in relation to the overarching question of how to achieve access to

sufficient water for everyone, even a more transformative judicial reading of the right to water

than was in evidence in Mazibuko, may have limited benefit in securing significant

improvements. This raises the question of how else constitutional rights can be fulfilled in order

to promote substantive transformation (an essential aim, given the continuing and profound

challenges of poverty experienced by many). In short, how else can socio-economic rights (and

particularly the right to water) be pursued and championed, other than through the Courts?

The utility of conceptualising the Constitutional Court as being in a liminal space is that it

invites a more authentic, self-critical evaluation of the Court’s role (both actually, and

aspirationally), including the current/potential consequences of this role for constitutionalism.

This in turn leads to a consideration and critical re-evaluation of modes of water governance

lying outside the current configuration of individual rights claims (made within a water-as-

commodity paradigm), and that therefore do not necessarily rely on the courts to act as the

guarantors of distributive justice. In short, liminal constitutionalism leads us to acknowledge that

discourse on access to water may have reached the limits of ‘rights talk’. What lies beyond is

less familiar terrain.

4.8 Reaching the limits of ‘rights talk’750

The plight of the Phiri residents, in the aftermath of the Mazibuko judgment, reflects the

enduring reality of water poverty for people across the country, despite their right to water. In

Durban, where the author’s empirical work has focused, this work reflects the same problems

as in Phiri, namely that the poorest people must routinely navigate daily existence with

insufficient water. Paying for more water than the amount currently provided for free is rarely

an option for people in this position. Therefore the absence of a minimum core for water that

accurately reflects people’s most basic needs, condemns many to perpetual water poverty. It is

against this grim reality that the Mazibuko judgment appears as such a profound failure for

transformative constitutionalism. While the interpretative approach of the Court can be

acknowledged for its consistency with preceding judgments, and its scrupulous adherence to

750

M Pieterse ‘Eating Socio-economic Rights: The Usefulness of Rights Talk in Alleviating Social Hardship

Revisited’ (2007) 29 Human Right Quarterly 796, 822.

175

separation of powers sensibilities, it nevertheless represents an impotent constitutional and

judicial response to such a crucial and basic need. The profundity of this failure inevitably raises

the question of whether the transformative potential of socio-economic rights within their

present interpretive framework, have reached their limits.

The social repercussions of insufficient water for the residents of Phiri (as well as for others in

similar situations) are obvious, although it may be difficult for those of us untouched by poverty

to fully empathise with people in such dire conditions. Average households contain more than

16 residents, most of whom are dependent on State pensions and/or child support grants. As a

community they were described by the High Court as ‘poor, uneducated, unemployed and…

ravaged by HIV/AIDS’.751

Insufficient water, regularly experienced, has multiple detrimental

consequences for (amongst other things), health, education, gender equality, child safety, and

domestic violence, as well as (perhaps most fundamentally) human dignity.752

But there are doubtless economic and environmental consequences too. It is anticipated that

the impact of climate change on communities like Phiri will be serious, since the existing socio-

economic deprivations undermine the material and physical resilience necessary to effectively

adapt. As the United Nations Intergovernmental Panel on Climate Change, Adaptation and

Vulnerability working group explains:

‘Poor communities are especially vulnerable, in particular those concentrated in high-risk areas.

They tend to have more limited adaptive capacities and are more dependent on climate

sensitive resources, such as local water and food supplies.’753

In this context, any scope for economic development is seriously limited by high

unemployment, low rates of training and education and a dearth of all but the most peripheral

entrepreneurial opportunities.

Emphasising the social, economic and environmental consequences for people living with

insufficient water reflects the established ‘Trinitarian’ model of sustainable development. This

model (requiring consideration of social, economic and environmental factors) is central to the

IWRM/ developmental water management (DWM) approach to water allocation, discussed in

Chapter Three (at 3.4), and evident in the Second National Water Resource Strategy

751

Mazibuko (W). Paragraph 5. 752

See generally: J Martinez-Alier The Environmentalism of the Poor: A Study of Ecological Conflicts and

Valuation (Edward Elgar, 2002). 753

C Vogel & P Reid ‘Vulnerability, Adaptive Capacity, Coping and Adaptation: a Conceptual Framework’ in R E

Schulze (Ed) Climate Change and Water Resources in Southern Africa: Studies on Scenarios, Impacts,

Vulnerabilities and Adaptation, WRC Report no 1430/1/05 (Water Research Commission, 2005) 351-358.

176

(NWRS2). The model is also visible to differing degrees in the Courts’ engagement with the

Mazibuko case. But it is the social concerns of the Phiri residents, pitched against the economic

impetus of Johannesburg Water, that are seen most clearly. The High Court and Supreme

Court of Appeal afforded more weight to those social considerations of individual necessity for

water and dignity; the Constitutional Court emphasized the nature of water as an economic

good and the pragmatic limitations of progressive realization. The question of sustainability was

raised before the Constitutional Court in relation to the ability of Johannesburg Water to

provide a particular quantity of sufficient water per person. But this was distinctly a question of

economic sustainability linked to the assumption that the water provider must be able to

operate competitively. Concerns about environmental protection and the potential ecological

implications of climate change, or of doubling the quantum of sufficient water, were

conspicuous by their absence from the judgments of the High Court and Supreme Court of

Appeal. Neither court mentioned the so-called ‘environmental right’ (particularly sustainable

development) in Section 24 of the Constitution754

. Despite environmental protection and

sustainability featuring heavily in the legislation, these considerations appeared neither in the

obiter or ratio of the Mazibuko judgments.

The absence of environmental considerations is common to rights-talk in general, since

individuals’ rights claims are contested largely in isolation from the realities of resource scarcity.

Such an atomised approach to rights adjudication emphasises the very practical limitations of an

anthropocentric human rights narrative. Yet given the exigencies of water scarcity in South

Africa, and more generally the Anthropocene challenges mentioned earlier in Chapter Two, it

seems essential that the focus of water governance must be eco-socially sustainable. Stewart and

Horsten’s critique of the absence of environmental considerations in Mazibuko leads them to

ask how and where water is used (60% agriculture, 15% industry etc), and the justification for

such use in the face of the dual realities of water scarcity and insufficient water access for

many755

. Such questions, if raised in the context of litigation are likely to transgress the legitimate

purview of the Courts. But when asked outside this forum, they can aid the imperative of

keeping social, economic and environmental aspects of water access interconnected.

754

Section 24: Everyone has the right-

(a) to an environment that is not harmful to their health or well-being; and

(b) to have the environment protected, for the benefit of present and future generations, through reasonable

legislative and other measures that-

(i) prevent pollution and ecological degradation

(ii) promote conservation; and

(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable

economic and social development. 755

L Stewart & D Horsten ‘The role of sustainability in the adjudication of the right to access to adequate water’

(2009) 24 South African Publiekreg/Public Law 486, 503.

177

A second critique is that adjudication of rights claims can remove their public, political

dimensions, ‘domesticating issues of poverty’ and casting them as private, or familial matters756

.

The limitations of a rights-based approach to basic resource allocation are briefly sketched

below.

A liberal analysis of the limitations of rights tends to focus on flawed implementation: Sound

ideas suffer from insufficient resources or poor application. But a radical critique suggests that

the limitations of using rights to achieve genuine socio-economic improvements lie in the way

that rights (internationally accepted human rights or constitutional rights) give legal form to

moral claims. In so doing the moral claim is diluted, turning it into a technical legal problem

and bureaucratizing away the imperative to meet the claim on which the right is founded757

.

When conceived as a legal problem, considerations like progressive realization, reasonableness

and available resources become acceptable explanations for unmet claims. The moral claim

that everyone should have access to the quantum of water required for dignified existence is

immediately diminished because of the Constitution’s limitations clause, which provides that

the State can restrict rights if it is doing so reasonably758

. Similarly the Constitution provides for

the progressive realization of socio-economic rights, but only within available resources. Lack of

available resources is therefore a (legally) legitimate reason for unfulfilled rights, despite the size

and nature of available resources remaining undisclosed. So, expressing the claim of access to

water in legal form (as a right) creates practical difficulties, and allows for inchoate application.

But there is also a normative dissonance between the moral claim and the narrative of a human

right to water, particularly when interpreted in light of water commodification and privatization.

As Karen Bakker explains:

‘Human rights are individualistic, anthropocentric, state-centric, and compatible with private sector

provision of water supply… Moreover, ‘rights talk’ offers us an unimaginative language for thinking

about new community economies…occluding possibilities for collective action beyond corporatist

models of service provision’.759

Such a critique need not deny that the right of access to sufficient water has helped reduce the

number of people living with insufficient water in South Africa. The pursuit of the right has had

756

D Brand ‘The politics of need interpretation and the adjudication of socio-economic rights claims in South

Africa’ in A J van der Walt (ed) Theories of Social and Economic Justice (African Sun Media, 2005) 17, 35. 757


commons?’ (Syracuse Conference, Cape Town, February 2010) 12.

758

Constitution of the Republic of South Africa: Section 36. 759

K Bakker ‘The ‘Commons’ Versus the ‘Commodity’: Alter-globalization, Anti-privatisation and the Human

Right to Water in the Global South’ (2007) 39(3) Antipode 441, 447.

178

positive substantive and normative effects and has underpinned significant legal victories.760

But

Pieterse761

and Bond762

assert that human rights generally, and Constitutional rights specifically in

South Africa, concentrate on consciousness-raising and recognition of individual’s rights to

necessities, rather than focusing on redistribution, reparation, and environmental exigencies.

Their potential for social transformation is therefore limited. More stridently, Brand asserts that

‘the law, including adjudication, works in a variety of ways to destroy the societal structures

necessary for politics, to close down space for political contestation’.763

The importance of

contestation is explored further in Chapter Five.

Countering these limitations are a growing cacophony of voices advocating for a paradigm shift,

away from individualized rights, towards the ‘commons’, and a culture of sharing, which is

becoming known as ‘commoning’, towards which attention will shortly turn.

Critiqued in this way, the Constitutional Court’s decision in Mazibuko illustrates the limitations

of using rights (including principally the right of access to sufficient water) to achieve sustainable

access to sufficient water for the most vulnerable. Unsurprisingly therefore, the strategy of

campaigners, civil society and those affected by water poverty, is changing in response. Reliance

on litigation and an overly-optimistic conception of the developmental role of the Courts, is

being challenged, and replaced. Instead a shift towards advocating for greater grass-roots,

community action, is emerging, aimed not at challenging the legality of inchoately experienced

rights, but at reconfiguration at the community level, to address the underlying problem of

water poverty more effectively than does the status quo.764

760

See: Residents of Bon Vista Mansions v Southern Metropolitan Local Council [2002] JOL 9513 (W). Hereafter

Bon Vista. 761

M Pieterse ‘Eating Socio-economic Rights: The Usefulness of Rights Talk in Alleviating Social Hardship

Revisited’ (2007) 29 Human Right Quarterly 796, 822.

762


commons?’ (Syracuse conference, Cape Town, February 2010). 763



See: Socio-Economic Rights Institute of South Africa website <http://www.seri-sa.org> (Last accessed 27 July

2016).

179


Charting the role of the Constitutional Court and its interpretation of socio-economic rights in

the context of contemporary South Africa (including an expansive Bill of Rights, an intransigent

ANC government, manifold social and economic problems, and limited resources) has been an

essential step towards understanding the limitations surrounding using the right to water to help

realise the goal of access to sufficient for everyone.

While analysis of the Court’s approach to socio-economic rights has variously emphasised its

jurisprudential consistency on the one hand, and its retreat from transformative

constitutionalism, towards more managerial decisions, on the other, the enduring material

realities of insufficient access to healthcare, shelter, and water, amongst other necessities,

nevertheless leads to the conclusion that a ‘top-down’ transformative role for the Courts should

not be overly relied upon. For example, sixteen years after the Grootboom decision, many

South Africans still do not have access to adequate housing.

It is perhaps unfair to excessively criticise the Constitutional Court for not presiding over

greater positive transformation than it has, despite the surfeit of socio-economic rights at its

disposal. Indeed, the Court’s current Chief Justice Mogoeng Mogoeng adds some much-

needed perspective as to the scale of the task:

‘By any standards, 20 years is too short a period to gauge the effectiveness of the mechanisms

designed to undo at least 300 years of racial subjugation and economic disempowerment. A lot

of good has been done. There has [sic] been quite a number of teething and unanticipated

problems. But there has also been several self-inflicted and progress-inhibiting impediments.

We need a radical paradigm shift in our approach to this.’765

The final line here also hints at the limitations inherent within the current judicial approach to

socio-economic rights (however expansively they are framed, and no matter how transformative

their outcomes might be at times). Arguably such limitations stem from an overly individualistic

conception of rights. Conceived as such, any constitutional right is inchoate and can raise hope

beyond what can realistically be achieved. Moreover, despite judicial differences between the

lower and higher courts in Mazibuko, the final judgment – representing what is ultimately a

constrained expression of a moral claim – signifies the inevitable limitation of achieving

development through law. What actually occurred is that the Constitutional Court filtered the

moral claim through a legal lens, which invariably diminished the significance of the overriding

765


Singapore Academy of Law Journal, 1-16, 16.

180

goal to be reached. Perhaps in a democratic society, and a capitalist economy, this is as much as

can be expected from a judicial forum.766

Any more is pure utopia. But this need not be the end

of the tale. There are other approaches, such as an emphasis upon collective rights and

commons allocation, which might equally provide an alternative, and perhaps more effective,

means to achieve transformative goals, even if they currently stray beyond the confines of what

is considered generally appropriate. Moreover, such approaches also emphasise the

significance, nay the necessity, of moving away from the traditional and sterile dichotomies in

development discourse – public v. private, market v. State-controlled, commodification v.

human right, international v. municipal - that have so far informed the dominant discourses on

water governance at the international and national (South African) levels and towards more

pluralist interpretations of the interlinkages between law, development and politics. Although

such interpretations may be less easy to categorise and rationalise from a formal, legal

perspective, they are as much part of the social reality as are the keynote constitutional

judgments considered above.

Here, the notion of liminality may be of use once again, in helping to conceptualise the

epistemic shifts hinted at thus far. Rather than just denoting a temporary jurisprudential location

in the self-image of the Constitutional Court (between more transformative and more

constrained judgments), liminal constitutionalism can also describe the threshold between

understanding the courts as the principal guardian of socio-economic rights, and emerging

‘new/old’767

modes of water governance that are becoming increasingly important sites for

contesting sustainable and equitable solutions. Serendipitously, the physical properties of water,

as flowing, fluid, and resisting stasis, would seem to encourage consideration of similarly fluid

modes of governance. It is towards some of these, that our attention now turns.

766

One should also not diminish the crucial role for a court in balancing not just the claims before it, but also the

wider agendas on both sides of the issue to determine the wider public interest. For instance, as the amicus curiae

in Mazibuko was part of an anti-privatisation forum, the rights-claims brought on behalf of the Phiri residents could

not realistically be separated from the interests of those representing them. This may, in turn, diminish the moral

claim underlying the substantive right. How far a court would, either expressly or implicitly, consider such matters

must remain conjecture but arguably is a fundamental role of a judicial body in a democratic society.

767

D Bollier & BH Weston ‘Reimagining ecological governance through human rights and a rediscovery of the

Commons’ in A Grear & E Grant (eds) Thought, Law, Rights and Action in the Age of Environmental Crisis

(Edward Elgar, 2015) 251, 251.

181

5 Water stories, community

organisation and ‘commons’

thinking

‘And all those who had believed were together and had all things in common; and they

began selling their property and possessions and were sharing them with all, as anyone

might have need.’

Acts 2:44-45768

‘The first step towards reimaging a world gone terribly wrong would be to stop the

annihilation of those who have a different imagination – an imagination that is outside

capitalism as well as communism. An imagination which has an altogether different

understanding of what constitutes happiness and fulfilment. To gain this philosophical

space, it is necessary to concede some physical space for the survival of those who may look

like the keepers of our past, but who may really be the guides to our future’

Arundhati Roy769

‘With deregulation, privatisation, free trade, what we're seeing is yet another enclosure and,

if you like, private taking of the commons. One of the things I find very interesting in our

current debates is this concept of who creates wealth. That wealth is only created when it's

owned privately. What would you call clean water, fresh air, a safe environment? Are they

not a form of wealth? And why does it only become wealth when some entity puts a fence

around it and declares it private property? Well, you know, that's not wealth creation. That's

wealth usurpation.’

Elaine Bernard770

768

The Bible, New International Version, Acts chapter 2, verses 44-45. 769

A Roy ‘The Trickledown Revolution’ Outlook, 20 September 2010. Available at:

<http://www.outlookindia.com/article/the-trickledown-revolution/267040 >. (Last accessed 27 July 2016). 770

E Bernard The Corporation 2003.

182

5.1 Introduction

The previous chapters have outlined a rights-based approach to access to water, and have

concluded that this approach, in its current configuration, is unlikely to be successful in

achieving access to sufficient water for everyone in the country.

This chapter will first use an empirical study to provide supporting evidence for the claim that

20 years of a constitutional right to water have made inadequate impact on the ground for the

many people still living in water poverty (the statistical data in support of this has already been

outlined in Chapter Three). It is hypothesised that the current, primary legal solution to the

problem of water poverty (a right of access to sufficient water), framed within a water-as-

commodity paradigm, is inadequate, because of the inadequacy of the theory behind the law:

namely that conferral of a qualified, individual right will affect significant positive change.

Therefore, it is suggested that the paradigm upon which the current legal solution is based

needs to be reconsidered. This is supported by the perceived failure of the right to water to

effectively facilitate access to sufficient water for everyone in the country – as evinced in the

Constitutional Court’s judgment in Mazibuko.

This chapter then looks to current practice to see whether any viable alternatives arise from

within the empirical study undertaken. It identifies practices that reflect ‘commons’ approaches

to water access, which it is suggested may help to redesign and reinvigorate water governance in

South Africa. The chapter examines the potential that commons approaches represent as an

alternative (or as an adjunct) to the present, dominant mode of water governance in South

Africa (as discussed in Chapters Three and Four), seeking to understand these practices

through an alternative legal paradigm, referred to as ‘water-as-commons’.

Structured in this way, the chapter contains two distinct sections; one is comprised of research

(interview findings), the other analysis. But rather than present these sections in separate

chapters, they have remained together as a reminder that ‘the medium is the message’: that

including the voices of water poor people within analysis of the right to water is an integral part

of reimagining water governance (this methodological insight is explained and applied more

fully below at 5.2.2). Here, commons approaches to water governance are scrutinised using a

combination of theoretical, historical and empirical enquiry. Central to the use of empirical

data is the connection between people’s experiences of living with insufficient water, and

commons approaches that are arising in response to these experiences.

183

The limits of a right of access to water within a water-as-commodity paradigm

Throughout the thesis so far, mention has been made of the various ways in which water, and

access to water can be conceived. Particular emphasis has been given to conceptions of water as

being a public good (held on trust and administered by the State), or a commodity (the

economic value of which is prioritised). As detailed in Chapter Two, and Chapters Three and

Four respectively, the commodification of water (treating water primarily as an economic good)

in recent years has been encouraged and embraced internationally (with varied success), as well

as in South Africa. This has had a considerable effect on water governance in South Africa,

generating legislation and strategic priorities that advocate full cost recovery, and influencing

judicial decisions on the reasonableness of water policies. Throughout the thesis a terminology

of paradigms is used in order to describe the various conceptions of water that are considered.

Conceiving of water primarily as a commodity is referred to as a ‘water-as-commodity

paradigm’.

The previous chapter concluded that a constitutional right to water, as it is currently expressed,

(requiring reasonable measures to be taken towards its progressive fulfilment, contingent upon

available resources) could not ensure that everyone experiences access to sufficient water with

which to meet their basic needs. Viewed from within a water-as-commodity paradigm, one

response to this perceived failure may be to reappraise the current expression of the right to

water. This could include debating the advantages of a minimum core approach to the right to

water versus a reasonableness approach (as developed and favoured by the Constitutional

Court). Another response may be to pursue greater clarity and transparency around the issue of

available resources, and to identify opportunities within the current political structures to

advocate for greater prioritisation of socio-economic rights. More radically, the sacrosanct status

of Separation of Powers, (as attested to by the Court’s consistently deferential stance towards

government and parliament), could be further critiqued, perhaps emphasising an

instrumentalist approach to transformative constitutionalism, less sensitive to trespassing on

policy decisions, in the pursuit of securing significant material improvements. And there are, no

doubt, other ways to respond to, and improve on, the inchoate right of access to sufficient water

in its present form, within a water-as-commodity paradigm.

Some of the above critiques have been elaborated on in Chapter Four, while others lie outside

the remit of this thesis. But each of them shares some common attributes, the identification of

184

which is crucial to introducing the purpose of this chapter. First, the right of access to sufficient

water, in its current form, pertains to individuals: ‘Everyone has the right of access to…

sufficient food and water’.771

As such, the right is not conferred collectively on groups (families,

communities etc.). Rather, each person has her/his own right. Second, the right is one of ‘access

to sufficient water’, as opposed to ‘ownership of sufficient water’ or a ‘right to water’.772

This

complements the designation of water in the National Water Act, as being under ‘public

trusteeship’, administered by the State, for the benefit of the nation (see discussion at 3.3.2).

This also limits potential encroachment upon individuals’ property rights under the

Constitution773

(which will be critiqued at length below, in relation to access to water). Third,

despite the emphasis on individuals’ rights of access to water within the Constitution and

legislation, simultaneous reference to water as an economic good, and to the need to achieve

‘efficient use’ of water, has perpetuated and reinforced commercial approaches to water service

provision, which emphasise cost-recovery.774

Such an approach was clearly acknowledged in

Mazibuko, and was accepted without criticism by the Constitutional Court (see above at 4.7).

Together, these attributes support a reading of the current right of access to sufficient water as

existing within a water-as-commodity paradigm (as introduced in Chapter One, and applied in

the South African context in Chapter Three at 3.4). In short, the right to water is individualistic;

it is compatible with private property rights; and it is interpreted in light of a priori assumptions

about the commerciality of water services. Therefore, further debate around judicial deference,

government priorities, or the reasonableness of ‘reasonableness’ (!), however beneficial, is likely

to take place within the same paradigm, asserting (more or less consciously) the same attributes

of the right to water identified above.

However, the conclusions drawn in the previous chapter, about the limits of rights talk, provide

the impetus for this thesis to open up new space in which to reimagine water governance, and

the role and efficacy of a right to water. It is therefore the principal purpose of this chapter to

attempt such a reimagination, and to propose a paradigm shift: from water-as-commodity,

towards water-as-commons.

771

Section 27 (1) (b) of the Constitution. 772

In the South African Constitution, the water-related right is the ‘right of access to sufficient water’. However, for

brevity, on occasion, this right is referred to as the ‘right to water’. 773

See Section 25 of the Constitution. 774

See discussion at 3.4.

185

Exploring and experiencing the consequences of a paradigm shift

The chapter begins by reflecting on the experiences of some of the many people living in water-

poverty in South Africa (regularly experiencing insufficient access to water, with myriad negative

consequences). This applies the practice of ‘narrative inquiry’ (see above at 1.3.1 and below at

5.2.1).775

Embracing narrative (the telling of a story) as both a method and a phenomenon of

study, narrative inquiry ‘involves the reconstruction of a person’s experience in relationship

both to the other and to a social milieu’:776

By deliberately including within this thesis the voices

and stories of water-poor people, the shortcomings of the current right to water can be exposed

not just as causing legal or political problems, but also social problems, personally and

communally experienced. As will be seen, these experiences create multiple histories that attest

to some material improvements, as well as to continuing disenfranchisement and

discrimination, suggesting some unsettling continuities with the country’s troubled past.

Moreover, the application of narrative inquiry777

here - actively listening to the experiences of

water-poor people, and their responses to water-poverty – reveals ideas, attitudes and actions

that can inform and inspire attempts to reimagine water governance in more equitable and

sustainable ways. To this end the chapter considers the enfranchising potential of narrative,

before analysing the interviews conducted, and their connection to the arguments in the current

and preceding chapters.

As will become apparent, it is argued that across myriad community/communal/co-

operative/commons organisational modes attested to in the empirical work conducted by the

author, as well as by other researchers, there are some sufficiently discernable shared

characteristics, which warrant discussion of these modes within a single (albeit broad) paradigm:

commons approaches to water governance, or ‘water-as-commons’. Commons theories are

introduced, and the history of ‘commoning’ in various parts of the world is traced, in order to

locate ‘commons thinking’ within a rich and complex mixture of ancient traditions, indigenous

knowledge systems and postmodern theory. It is asserted that commons thinking, applied to the

task of helping achieve access to sufficient water, is capable of reimagining water governance to

effectively respond to key problems associated with insufficient water access. Of particular note

here is the emerging conceptual shift from government to governance, and consequently the

growing importance of multi-level governance and grass roots organisations, both of which

775 S Pinnegar & J G Daynes ‘Locating Narrative Inquiry Historically: Thematics in the Turn to Narrative’ in D J

Clandinin (ed) Handbook of Narrative Inquiry: Mapping a Methodology (Sage Publications, 2007) 3. 776

Ibid at 5. 777

Ibid at 3.

186

prioritise stakeholder participation and enfranchisement.778

This shift is analysed in more detail

below.

Although serious criticisms of commons thinking exist in the literature, and are acknowledged

and explored here, this chapter’s consideration of the potential of the commons to help

reimagine water governance is unapologetically optimistic in parts. This optimism (and the

conscious suspension of negative preconceptions associated with non-hierarchical, grass-roots

modes of governance, which it entails) is crucial to creating fresh epistemic space within which

ideas can emerge and play, uninhibited by the confines of the dominant paradigm. Within such

a space, the erstwhile inviolate phenomena of private property, commodification,779

and human

rights are deconstructed and reconsidered in relation to how best to meet the challenge of

securing access to sufficient water for everyone.

This interrogation of commons thinking will prepare the way to argue that the current state of

water governance in South Africa should be reviewed in order to better facilitate and encourage

the growth of community-specific bottom-up water solutions.

5.2 Story-telling: Listening to people’s lived experiences

So far in this thesis most of the research underpinning my writing has come from sources that

are traditionally accepted and expected in legal scholarship, including books, journal articles,

case reports, legislation, and treaties. While the sources used have been chosen for their

specific relevance to the subject of the thesis, it is perceived that they also meet a more general

standard, which warrants their inclusion, namely that of offering ‘methodologically validated

knowledge about society’780

(or at least that part of society being scrutinised). There is an

assumption that such scholarly resources are accepted because they pursue and/or reflect

‘truth’.781

778

See P Jon ‘Introduction: Understanding Governance’ in P Jon (ed) Debating Governance: Authority, Steering

Democracy (Oxford University Press, 2000); D M Trubek & L G Trubek ‘New Governance & Legal Regulation:

Complementarity, Rivalry, and Transformation’ (2007) University of Wisconsin Law School, Legal Studies

Research Paper Series Paper No. 1047. 779

Here the term ‘commodification’ refers to the transformation of anything (goods, services, people etc.) into

commodities or objects of trade. See: A Appadurai ‘Introduction: commodities and the politics of value’ in A

Appadurai (ed.) The Social Life of Things: Commodities in a Cultural Perspective (Cambridge University Press,

1983) 3. 780

R Usher ‘Telling a Story about Research and Research as Story-telling: Postmodern Approaches to Social

Research’ in G McKenzie et al (eds.) Understanding Social Research: Perspectives on Methodology and Practice

(Falmer Press, 1997) 27. 781

Ibid.

187

By contrast, we tend to think of ‘story-telling’ differently. We synonymise stories with fiction,

rhetoric, and even hyperbole, which mark story telling out as an altogether less serious

endeavour than scholarship.782

Indeed, for a long time, story-telling (narrative form, or

‘narrativity’, as it is referred to in sociological literature) has been deliberately avoided in legal

scholarship; scorned by scholars as being ‘forever a bastard discipline’:783

particularistic,

idiosyncratic and imprecise. More recently however, narrative form has begun to be embraced,

as a means of incorporating subjective and specific accounts of social life, within consciously

socio-legal work. In such a context, the criticisms of particularism, idiosyncrasy, and

imprecision are beginning to be celebrated as providing ‘a promising vehicle for introducing

legal decision-makers to a more complex, ambiguous legal subject’.784

This has been driven, in

large part, by the emerging challenges within social-scientific scholarship, to claims of ‘truth’,

and ‘pretence to objectivity’ (as mentioned above in relation to formalist approaches to judicial

restraint).785

These challenges are themselves symptomatic of a ‘postmodern turn’ within wider

society, described by Best & Kellnor as:

‘a turn away from modern discourses of truth, certainty, universality, essence, and system, and a

rejection of grand historical narratives of liberation and revolution’.786

This section offers a brief reconsideration of the role of legal research through stories, asserting

that narrative inquiry is necessary in order to understand law in action, and therefore, in the

context of this thesis, essential for appreciating the manifold challenges facing people seeking to

secure access to sufficient water. Although commonplace in sociology, and notwithstanding the

work of scholars including Ewick & Sillbey, and Abrams, this method remains underused in

legal research.787

Having deliberately adopted such a method here, a brief justification for it is

provided. It is argued that including people’s stories alongside ‘legal’ materials is necessary in

order to more fully understand the potential that commons approaches have to positively shape

water governance. Furthermore, it is asserted that the traditional ‘legal’ materials identified

above are themselves examples of telling stories. Some of the decentring consequences of this

assertion are considered below.

782

Ibid. 783

P Ewick & S S Silbey ‘Subversive stories and hegemonic tales: Toward a sociology of narrative’ (1995) Law and

Society Review 197-226, 198. 784

K Abrams ‘Unity, Narrative and Law’ in A Sarat & S S Silbey (eds.) Studies in Law, Politics and Society ( JAI

Press, 1993) 30. 785

P Ewick & S S Silbey ‘Subversive stories and hegemonic tales: Toward a sociology of narrative’ (1995) Law and

Society Review 197-226, 198. 786

S Best & D Kellnor The Postmodern Turn (The Guildford Press, 1998) 7. 787

See: K Abrams ‘Hearing the Call of Stories’ California Law Review (1991) 79; P Ewick & S S Silbey ‘Subversive

stories and hegemonic tales: Toward a sociology of narrative’ (1995) Law and Society Review 197-226. Also see

generally K Plummer Telling Sexual Stories (Taylor & Francis, 2004).

188

5.2.1 Enacting a methodology of narrative inquiry

The general methodology and method that my empirical work follows is detailed in Chapter

One (1.3). Here, some deeper reflections are offered around the particular importance of

narrative inquiry in the specific context of this thesis and its focus.

In March 2000, shortly before the Millennium Development Goals were agreed, the World

Bank published a significant report on people’s experiences of living in poverty, entitled ‘Voices

of the Poor: Can anyone hear us?’788

It was compiled from 60,000 interviews in 60 countries,

offering important context for the forthcoming MDGs. In so doing, the report brought narrative

inquiry to the forefront of development studies. Voices of the Poor also gave essential insight

into the nature of poverty, concluding that poverty is much more than lack of income. Poverty

was also identified with people’s experience of under-representation in their political

institutions, and of being denied a ‘voice’ with which to influence the key decisions that affect

their lives.

Voices of the water-poor

Inspired by the report’s methodology, as well as by its conclusions around the disenfranchising

effects of poverty, the interviews I conducted with members of water poor communities, have

sought to emulate it (on a much-reduced scale), by recording personal accounts of people’s

experiences of accessing (in)sufficient water, and the implications of this. Also, in the process of

interviewing, I sought to acknowledge the (modest) enfranchising potential of narrative itself.

The very act of listening to people’s accounts of the challenges they face in accessing water can

communicate affirmation to the story-teller: that their experiences matter; that they have been

noticed; and that, in some small way at least, they have a ‘voice’. As Spanbauer lyrically reminds

us:

‘The only thing that keeps us from floating off with the wind is our stories. They give us a name

and put us in a place, allow us to keep on touching.’789

Such sentiments are affirmed in my own experience of interviewing people, most of whom have

been extremely eager to tell their stories, to share their names, and to open their homes.

Throughout the thesis, as people’s experiences are represented in quotations from their own

stories, it is important to be mindful that any process of representation is complex. Here some

788

‘Voices of the Poor: Can anyone hear us?’ 14 March 2000: See

<http://web.worldbank.org/WBSITE/EXTERNAL/NEWS/0,,contentMDK:20013937~menuPK:34463~pagePK:

34370~piPK:34424~theSitePK:4607,00.html> (Last accessed 27 July 2016). 789

T Spanbauer The Man Who Fell in Love with the Moon (Grove Press, 1992) 190.

189

of the recent scholarship on narrative methodologies and postmodern approaches to social

research is relevant. Critiquing the modernist assumption that meaning can be discovered by

dispassionate observation and experimentation, postmodern approaches to social science

suggest that there is a first step that must precede such empirical work. This first step ‘requires a

shifting of the way the world is seen and the construction of a new world to investigate’.790

In

light of this, my attempts to capture and represent people’s stories can be seen as a mode of

intervention, which changes the way the world (here, the phenomenon of living without access

to sufficient water) is understood, and opens up new spaces to investigate.791

Not only can this

insight break open the epistemological closures that are assumed in traditional legal research

(for instance a justiciable right of access to sufficient water, granted within certain constraints is

expected to result in effective provision of sufficient water), it also decentres epistemology as the

pivot of research, requiring that fresh ontological enquiry must precede it.792

Applying these insights to the foregoing research into water governance at the international and

domestic levels, including the Constitutional Court’s jurisprudence, we are reminded that

epistemological research traditions (that delineate knowledge from thought and experience) are

never independent of the socio-cultural context in which they are practised. Rather, they are

inevitably coded by ‘the structures, conceptuality and conventions of language, embodied in

discourses and texts’.793

Even though the sources that have been used to analyse water

governance thus far are familiar to (legal) epistemological research, they cannot escape socio-

cultural contextualisation. Neither can they avoid relying upon the meaning-constituting system

that language is. Therefore, even the most positivist/empiricist sources used can be understood

as stories, which cannot be separated from their subjectivity, history or socio-cultural location,

or from the coding of the language in which they are represented. The same holds for the

ensuing discussion of the commons, and the reflections on people’s lived experiences of access

to (in)sufficient water.

Some of the experiences shared below affirm that there have been improvements in access to

water, particularly since 1994. But most of the people interviewed also document that

790



(Falmer Press, 1997) 31. 791

DJ Clandinin & J Rosiek ‘Mapping a Landscape of Narrative Inquiry’ in D J Clandinin (ed) Handbook of

Narrative Inquiry: Mapping a Methodology (Sage Publications, 2007) 35.

792



(Falmer Press, 1997) 31. 793

Ibid.

190

challenges remain. Many of the stories shared remain focused on the problems of accessing

sufficient water. While others tell us how their experiences of water-poverty have led them to

develop responses that (to differing degrees) reflect the salient features of commons thinking.

5.2.2 ‘The Medium is the Message’: the importance of narrative inquiry for commons

thinking

In 1964 the philosopher and communication theorist Marshal McLuhan coined the phrase ‘the

medium is the message’.794

McLuhan’s insight - that the medium through which a message is

communicated, influences the message itself – is pertinent to the inclusion here of the

experiences of water-poor people, in a discourse around alternative modes of water

governance. Without this, the content of the ‘message’ - that more appropriate approaches to

water are possible - risks being undermined by the medium used (by an enquiry undertaken at

a great distance - geographically, empathetically and experientially - using legal and other

scholarly materials, the privileged status of which results in an over-emphasis on the efficacy of

legal mechanisms, without sufficient appreciation of their lived consequences).

In contrast, this enquiry has deliberately sought to embed the legal analysis of the right to water

within the social context that makes it meaningful: the experiences of those living without

sufficient water. Therefore, it is hoped that as the role of community organisation and

commons thinking are analysed, the medium – discourse that includes people’s experience of,

and response to, water poverty – will positively influence, ground, and sensitise the message (or

conclusions that are reached).

Furthermore, such is the importance placed on the need for commons approaches to spring

from the priorities and capacities of the communities themselves, (as evidenced below) that it is

difficult to imagine how any serious enquiry into the potential of the commons to affect modes

of governance could be undertaken in isolation from the relevant lived experience of

communities. Inclusion (in some shape or form) of people’s experience within the fabric of

commons responses seems vital to the methodological integrity of commons thinking.

Therefore, throughout the thesis, but particularly in this chapter, the emphases placed on the

stories of water-poor people, and on commons modes of water governance, do not represent

two separate foci: Rather, they are intertwined.

794

M McLuhan Understanding Media: The Extensions of Man (McGraw-Hill, 1964) 8.

191

5.3 Stories from water-poor people – glimpses of the commons

This section considers some stories of people’s experiences of life where access to sufficient

water is problematic. These stories have been collected over a number of years, and from a

variety of places in rural and peri-urban KwaZulu-Natal (in South Africa) and from rural and

peri-urban locations around the city of Blantyre in Malawi. Most of the stories come from

interviews that I have conducted, but some recent empirical work conducted by Sophie

Hellberg is also used in relation to the development of water governance approaches across

eThekwini municipality.795

In most of the communities in South Africa that I visited, English was not the primary spoken

language, although certain interviewees spoke fluent English. Consequently some interviews

were conducted through an interpreter, and so the extracts used to recount people’s stories,

where interpretation was necessary, are not verbatim. Rather, the interpreter has rendered

interviewees’ words spoken in isiZulu, into English. Where extracts from dialogues are

reproduced, the name of each speaker is indicated using their initials. As the interviewer, my

initials (NC) appear where necessary for clarity. Although often interviewee’s names are

anonymised in empirical research, here the decision was made to refer to participants by the

names they chose to give (either their full names, first name only, or nickname). The first

reason for this is that there is an extremely rare chance of participants’ identities being

discovered and recognised by readers, given the relatively isolated location of participants’

communities, as well as the academic audience at which this research is directed. The second is

that referring to participants by name seems appropriate given one of the stated aims of the

empirical work within the thesis: to allow people to tell their own personal stories.

5.3.1 A recap of the content of the right to water

Since most of the interviews below were conducted in South Africa, where a right of access to

sufficient water is constitutionally enshrined, the question of what is sufficient water is

particularly relevant in analysing people’s experiences of access to water in relation to their

constitutional right. As detailed in Chapters Three and Four, what constitutes ‘sufficient water’

is contentious. But, as discussion of the relevance of an internationally acknowledged right to

water (in Chapter Two) reminds us, considerable effort has been taken to define a minimum

core requirement for the right to water, which is at least indicative of what constitutes sufficient

water, in the South African context. Indeed, the Constitution of South Africa requires courts to

795

See Chapter One at 1.3.1 for more detail on how interviewees were approached, including information

provided, clarification of expectations, informed consent, and data protection.

192

consider international law.796

This was in evidence in the case of Mazibuko discussed in Chapter

Four, and particularly visible in the High Court and Supreme Court of Appeal judgments.

The Committee on Economic, Social and Cultural Rights, General Comment number 15 on

the right to water797

has been discussed at length in Chapter Two. But it is worth reminding

ourselves of what General Comment 15 (GC 15) states as being the necessary content of the

right to water. Paragraph 2 describes the human right to water as entitling, ‘everyone to

sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic

uses.’798

This provides a yardstick with which to measure how closely people’s experiences of

access to (in)sufficient water correspond to what has been authoritatively determined as

everyone’s requisite entitlement.799

Therefore, as people’s stories of water-poverty are shared,

the level of access they describe, as well as the conditions surrounding access, can be analysed

in relation to the broad requirements of sufficiency, accessibility and affordability, as stated in

GC 15 (each of these requirements is defined and analysed in detail in Chapter Two, at 2.3).

5.3.2 Stories from rural KwaZulu-Natal

The Winterton base of Christian development charity ‘Youth With A Mission’ (YWAM)

facilitated interviews with people in the communities of Okhombe and Woodford. YWAM

undertakes community development activities in these villages and settlements, which are close

to the Winterton base.

Okhombe

Okhombe is a large dispersed village at the foot of the Drakensberg Mountains, in eastern

KwaZulu-Natal, three hours’ drive inland from Durban. The population is around 500 people,

whose primary language is isiZulu.800

Here, Mbali Miya (MM) and Mpume (Mp) share their

experiences of accessing water:801

796


Committee on Economic, Social and Cultural Rights, General Comment No. 15, The Right to Water (Articles

11 and 12 of the International Covenant on Economic, Social and Cultural Rights), U.N. DOC. E/C.12/2002/11,

26 November 2002. Available at: < http://www.unhcr.org/49d095742.html> (Last accessed 27 July 2016).

Hereinafter, General Comment 15. 798

General Comment 15, Paragraph 2 (emphasis added). 799

Using General Comment 15 in this way does not ignore the accepted limitations of available resources, or the

general need for progressive rather than immediate fulfilment. It must also be noted that the ‘right to water’, as it is

referred to in General Comment 15, differs from the ‘right of access to sufficient water’ in the South African

Constitution. 800

See census information available at < http://census2011.adrianfrith.com/place/571032> (Last accessed 27 July

2016). 801


193

NC: Where do you get your water?

MM: Wheelbarrows to fetch from a tap [standpipe]… Sometimes there is a queue it is difficult

because you want water but there is a queue and you have to wait.

NC: How long does it take to get the water you need?

MM: During winter the water is very scarce in this community. You have to queue even to get a

litre

NC: Have you ever not been able to get any water out of the tap?

MM: Usually that tap, the water comes, you do pumping, but sometimes we don’t get any water

out… Before we vote they said the municipality said they were going to supply everyone. Every

house is going to have a tap. They started digging for where the pipes to go. Then after voting they

just stopped [2009 general election].

NC: Is the water clean/clear? Does it taste OK?

MM: Sometimes the water that comes out is not good. These days it’s smelling not good, like

fish… when it rains I think mud gets pumped in or something.

NC: Have you ever got ill from the water?

MM: Yeah, everyone says they do get ill. Runny tummy. I don’t know if it’s the water.

Mp: Because we don’t have taps we get water from the standpipe. When it rains the water from

the river comes in around the standpipe and I think it makes it bad. Sometimes it just comes dirty

water.

NC: Do you use it?

Mp: Yeah

NC: Do you boil it?

Mp: Yeah no not really, just put jik [bleach] in and leave it overnight and then use it in the

morning. Because sometimes you want to cook and you want to make things and so you cannot

wait for a long long time… You cannot boil it as it’s too much, you’re wasting your wood.

NC: What about the cost? Do you have to pay for the water you use?

Mp: No it’s for free… as much as you can get.

Mbali and Mpume’s account reveals that they regularly encounter significant problems relating

to water access. Sufficiency, relating to the volume of water necessary to meet their personal

and domestic needs, is one such problem when the flow from the communal standpipe they

use is slow or stops. Equally, the unpleasant odour and dirty appearance of water at times, as

well as the anecdotal connections made within their community between water and diarrhoea,

all draw into question the acceptability and indeed the safety of the water they access. Because

they fetch water using a wheelbarrow to carry 20 litre plastic buckets or drums, physical

194

accessibility is also a challenge. Even for able-bodied people, collecting enough water to meet

the daily needs of a family in this way is tiring and time-consuming. For elderly or infirm

residents such a method of collecting water is prohibitive, as ‘Gremmah’ (Grandma) Mbongwa

explains:

‘When it rains we collect the water from the roof. It’s better than carrying it from the river [200

metres away]. The rainwater can be rusty from the roof, but we put extra Jik [bleach] in it. So

it’s ok. It doesn’t taste nice when I make tea…

If it hasn’t rained, I get one of the children to go to the river for us. We still have to put Flash in

the water, because the cows shit in it. If not, I get the runs.’802

Indeed, living on the outskirts of Okhombe, and far from a standpipe, Gremmah Mbongwa’s

access to water is doubly problematic. Not only is her closest source of water (other than rain

water) too far away for her to carry it, the source – the river - is also not an ‘improved water

source’. An improved water source is one that, by the nature of its construction and when

properly used, adequately protects the source from outside contamination, particularly faecal

matter.803

Therefore those in Gremmah Mbongwa’s situation must rely on others to fetch water

for them, and then must take steps to try to reduce the chances that this water will cause

diarrhoea.

Clearly these experiences of access to water fall short of the content of the right to water, as

clarified by GC 15. Measured against the requirements of GC 15, only the affordability of

Mbali and Mpume’s water regularly meets the standard set, since they are not charged for the

water they access. Their account also provides an insight into the potential for people’s access

to water to become politicised. The election-time promise of improved water service provision

should have arisen from the municipality’s commitment to progressively realise the

constitutional right to water, and from an appraisal that resources were available to this end.

Instead, it seems that Okhombe residents were offered false hope of improvement, in return

for their vote. Gremmah Mbongwa also recalls that in 1994 the municipality first started to talk

about piping water to each house. This possibility resurfaced as a local election promise made

by both the ANC and IFP (Inkata Freedom Party) campaigns during 2008.804

Furrows were dug

802


See World Health Organisation Joint Monitoring Programme for Water Supply and Sanitation:

<http://www.wssinfo.org/definitions-methods/watsan-categories/> (Last accessed 27 July 2016). 804

See the following article that corroborates IFP’s water promises in Kwa-Zulu Natal during the 2008 election

campaign: ‘South Africa: Thirty Years Later, Still No Water in Roosboom’ All Africa 8 August 2014. Available at:

<http://allafrica.com/stories/201408110891.html> (Last accessed 27 July 2016).

195

in the run-up to the election, in preparation for pipes to be laid, but were abandoned once

election time was over.

Woodford

35 kilometres west of Okhombe is the village of Woodford. The community here faces

significant problems of material and social deprivation. It is estimated that 40% of its population

of several hundred residents805

are ‘economically inactive’.806

I interviewed three residents,

Nombuso Khaba (NK), and two sisters, Vosile (V) and Elizabeth (E). They shared similar

experiences to people in Okhombe, regarding the accessibility and quality of their water supply.

But there was some disagreement about whether the water they accessed was a cause of illness.

Also Nombuso’s account of the municipality’s decision to stop charging for water provides an

interesting example of community organisation in relation to water services. Although it was

unclear whether before this decision people were finding water access unaffordable, or whether

their principal complaint was that they were being charged for an intermittent supply.

NC: Where do you get your water from?

NK: Fetching from the tap [standpipe]

NC: How much water do you use in a day?

NK: Maybe eight 20 litres [8 x 20 litre buckets] for 11 [people in the household]

NC: Have you ever been sick from the water, or do you know anyone else who has had health

problems from the water?

NK: Before she [Nombuso’s cousin] was having stomach problem, so when she gone to the

doctor they said she got a water virus, she doesn’t know if it’s water or what.

NC: Do you ever have any problems with the supply?

NK: The water sometimes becomes dirty for a while before they [the municipality] clean them.

Sometimes they just finish – cut off – without any notice, and sometimes its not tasting good.

NC: How many times is it cut off in a month?

NK: Maybe twice a month… It doesn’t taste good because they are using chlorine.

NC: Do you have to pay for the water? Have you ever had to?

NK: No for free. Before they were paying for it, but now always for free. After a certain meeting

they were having the community was complaining about paying for the water so they decided to

stop paying. From there it’s free.

805

Exact census information is not available. 806

See <https://www.legalwise.co.za/files/2514/4238/6431/Ekwaluseni_Library_Project.pdf> (Last accessed 27 July

2016).

196

NC: Why did the community not want to pay?

NK: It’s too much. Many times it’s cut off.

NC: What year was that?

NK: Think it was 2004.

NC: The meeting, was it just community members there or was the municipality there as well?

NK: They were complaining to the municipality. So it was the community with the municipality.

NC: And did the community decide not to pay, or did the municipality say you don’t have to

pay?

NK: Both. We said we’re not going to pay. Municipality decided that they [the community]

mustn’t pay.807

----------

NC: How do you carry the water back from the standpipe?

V: If she’s making the washing she is taking the wheelbarrow. If she doesn’t want to make

washing, just take the bucket.

NC: How many buckets to do the washing?

V: Four buckets [4 x 20 litres]. Once a week.

NC: What is the water like? Is it clear? Does it taste good?

E: No it is because we use chlorine. They [the municipality] put it in… It is for free there is no

limit.

NC: So you’ve never got ill from the water?

E: Other people say they come sick, but I don’t understand why, the water is clean.

NC: Have you ever been promised a water tap here in the house?

E: No.

V: No.

NC: How many people use that pump? How many families?

V: Maybe if I can count families. It’s for 80 families. Two taps for 80 families.

807


197

NC: Is there a big queue?

V: Yes especially on Saturdays.

NC: Does it ever run dry?

V: Yes but it is rare. Most days we have enough water.808

Taken together, these narratives emphasise that there are particular challenges to access to

water in Okhombe and Woodford, relating to sufficiency (the collection of a quantum of water

commensurate with people’s domestic needs); acceptability (the taste, odour and appearance of

water); safety (although some interviewees rejected the assertion that the water caused illness);

and physical accessibility (relating to the proximity of improved water sources, and the logistics

of transporting the amount of water required). In these rural locations, the financial affordability

of water did not seem to present a challenge, since water services, where available, were

provided free of charge, and have been for some time.

Verulam

Closer towards Durban, I interviewed Sewpersadh Kanthelall (SK) who lives on a smallholding

on the outskirts of the town of Verulam, in eThekwini Metropolitan Municipality, 27

kilometres from the centre of Durban.809

Behind the smallholding, 500 metres away is a small

settlement called Msunduze, with around ten block and corrugated iron houses and several

rondavels (round huts made from mud, with thatched grass roofs). Mr Kanthelall told me how

he and his wife struggle to afford to pay their water bill, as well as how they regularly experience

intermittent supply, despite having taps and piped water to the house, and despite their location

within a large metropolitan area.810

NC: Where does the water come from? Is there a tap?

SK: A tap, yeah. And the water comes from the Hazelmere Dam. We pay for water, a month of

water… In case we don’t pay, they’ll cut the water off, but I pay every month. My water comes to

over 700 Rand a month. You see, myself and my wife we are pensioners, I can’t afford to pay

700 Rand a month, for it to be not working.

NC: [Looking at their water bill] a total of 797 Rand, that’s for one month?

SK: One month, yeah.

NC: And do you always have enough water? Is the supply always there?

SK: No, sometimes the water is cut. Containers are kept in case water is cut for a day or two.

808


eThekwini, meaning ‘lagoon’, is the Zulu name for Durban. 810

eThekwini Metropolitan Municipality is the second most populous area in South Africa, after Johannesburg.

This area is referred to variously as eThekwini, and as Durban.

198

NC: When the water is cut, do you know beforehand?

SK: No, when we open the tap, there is no water.

NC: Do you know why?

SK: No, we have to wait for the water to come in. It could be one day or two days that water

doesn’t come. So I’ve got some containers and things to cook, you must have water, without

water you can do nothing. So I don’t know, it might be cut off today or tomorrow.

NC: In one month, how often do you get the water cut off?

SK: About four times in a month.

NC: So maybe about once a week?

SK: Yeah.

NC: What about the quality of the water, is it fine?

SK: Yeah, it’s fine.

NC: And the amount that you spend on the water, do you get any free water?

SK: No, you have to pay for water. In the back [in Msunduze] most of the people get free water,

we are paying for them, because when those people come to [word indecipherable on

Dictaphone] business is our business.

NC: I’m really interested in how you get cut off and whether the government gives you notice.

SK: No, you just open the tap and there is no water.

NC: And the 700 rand a month, does that feel like a lot?

SK: Yeah, it’s big money. I’m earning 1410 Rand a month, I pay 700 Rand for water. What

about my lights, what about insurance, what about food?

NC: So you and your wife-

SK: She pays for power, I pay for water… If the water is cut the government don’t help us. The

water that comes, comes. You’ve got to pay for it, whether you’ve got water or no water. You’ve

got to pay your account, if you don’t pay your account [made a hand gesture of turning off a

tap].811

Conducted in November 2015, this interview took place during South Africa’s second

consecutive year of drought. The previous month was also the hottest October in recorded

history.812

No doubt some of the interruptions to Mr Kanthelall’s water supply are a result of the

low water table in the nearby dam, caused by the drought conditions, which compounded

underlying infrastructural problems with pumps and pipes.813

Long-term climate predictions

811


‘Records tumble as drought goes on’ The Mail & Guardian 20 to 26 November 2015, 11. 813

Ibid.

199

show that there will be even less water in the future, as the country’s interior becomes hotter by

between three and five degrees centigrade by 2050.814

Mr Kanthelall also shared how the amount they have to pay for water each month is a source of

anxiety for them, especially as they get older. Consequently, despite the ever-increasing

problem of water-scarcity, their measures to conserve water (including flushing the toilet only

sporadically) are driven primarily by financial concerns. Although still able to pay for the water

they use, such financial concerns, along with intermittent supply, are straining their experience

of regularly accessing sufficient water (as defined by GC 15, regarding accessibility and

affordability). However, Mr Kanthelall was quick to acknowledge that the standard of living that

he and his wife enjoy, is considerably better than that of many residents in neighbouring

Msunduze, whose relationship with water is more problematic still.

Msunduze

In Msunduze water is accessed from standpipes that have been erected in clearings between

dwellings. This provision is similar to that in Okhombe and Woodford, described above. But

here each standpipe serves a single household, and water must be paid for. To facilitate this,

standpipes are connected to meters. In November 2015, Ndwendwe local municipality was in

the process of replacing existing meters with prepayment meters, of the type used by Phiri

residents and at issue in the case of Mazibuko (see above at 4.5.6). I was invited in to the home

of Thandeka (T) and her family of five children, partner and grandfather, to discuss their

experiences of access to water. The meter attached to the standpipe Thandeka used was still

one that produced a monthly bill, but we spoke about what they anticipated the consequences

of changing to a prepayment meter might be.

NC: Do you get a certain amount of water every day that is free and then you pay after that?

T: 8 litres free.

NC: 8 litres a day? For the whole house?

T: 64(?) litres a day is free for the whole house. For everybody, it’s not counted as individual.

NC: How many people live here?

T: Eight.

NC: How many houses use this standpipe?

T: Just this one at the moment.

NC: So each of the houses here will have their own meters and their own taps?

T: Yes, we don’t share meters.

814

Ibid.

200

NC: Do you ever find there’s no water even if you’ve paid? Does the water supply get cut?

T: If the bill is high they will cut the water.

NC How do you get it on again?

T: We go pay.

NC: Do you have to pay all of it or just some?

T: They want it all.

NC: What happens if you can’t pay?

T: It’s difficult, you don’t have the water, you have to pay then you get the water.

NC: Does anyone get water from other places, like rainwater?

T: No, we don’t have rain heavy around here.

NC: The quality of the water, it’s fine? It’s good quality water?

T: Yeah.

NC: Do you ever find that you’ve run out of water?

T: No.

NC: Do you know of anybody in this area who doesn’t have enough water?

T: Yeah, there is a few where they don’t have enough water.

NC: And that’s because they can’t afford to buy it?

T: They can’t afford to buy it.

NC: [Looking at the standpipe] If that broke who would fix it?

T: It is a municipality, but when it broke a couple of weeks ago, months ago, we just had to do

it.

NC: You did it yourself?

T: Yeah, we just had to do it and the neighbourhood helped. We just put a new pipe, I think

the pipe is a little bit old now, sometimes it bursts. The government will only kind of be

involved with what’s happening in the meter. So whatever pipe that’s broke here, they wouldn’t

be involved, but they’d be involved if the water maybe burst out of the meter, and we call them

and they will come and fix it, but they will also take their own time.

NC: But the pipe is your own responsibility and you have to maintain that yourself?

T: Yeah.

NC: That must have cost quite a lot of money.

T: Yeah, it did.

NC: When the meter changes to a prepayment meter like the electric-

T: They’re already changing, I don’t know how they’ll do it, because ____.

NC: Do you think that will be a good thing or a bad thing?

T: Bad thing… I think it’s because of financial-wise. A lot [of people] are not working, they just

stay here, in the guardian of the grandpa, and he’s the only one who supports the family.

NC: The only income is from the grandpa?

201

T: Which is for 8 people. It’s quite a lot, and also regarding water and electricity.

NC: Do you know how much money it would cost each month to have the water that you need

on a prepayment?

T: It’s different. I think most of the time it’s 800 [Rand] a month.

NC: And that’s for the 8 of you?

T: Yeah… It is for 8 people, they live here and use water.

NC: With the 800 a month, if you have to spend that, will you still have enough for food or

electricity or school?

T: No, we don’t have enough. If you have to go and pay 800 for water you can struggle to pay

for food.

NC: How do you pay for the electricity is that prepayment?

T: Yeah.

NC: How much is the electricity?

T: 10 Rand will last a day.

NC: Do you go and buy that every day?

T: No, you have to buy maybe 100 Rand. And when it’s finished on the meter you buy another.

NC: Where do you buy it from?

T: Verulam, in the town.

NC: So you have to go all the way there to buy the electricity and then come back?

T: Yes.

NC: Can you walk?

T: No. Taxi. [Verulam is 23 kilometres away]

NC: Do you think that will be the same with the water prepayment, when that comes in, will you

have to go to the same place to buy the water prepayment?

T: Yeah, it’s exactly the same.

NC: How much does it cost in the taxi?

T: 12 Rand each way.815

In contrast to the experiences of people in more rural locations like Woodford and Okhombe,

Thandeka’s story reflects very different challenges facing her family’s efforts to access sufficient

water. The proximity and physical accessibility of their water source is generally unproblematic

(when not in need of repair), and the water quality is good. But, recounting the contemporary

experiences of neighbours, and anticipating the possible consequences of having to use

prepayment meters, clearly it is the affordability of water and the consequent denial of access to

water, when it cannot be paid for that is the most difficult challenge. Furthermore, once

815


202

prepayment meters are widely installed, if Msunduze residents are actually required to travel to

the nearest town in order to prepay their water accounts, the additional financial and logistical

burden that this would entail may compound the relative inaccessibility of sufficient water for

people in Thandeka’s situation, despite their physical proximity to clean, piped water.

It is not claimed that these stories of people’s experiences of access to water in specific rural

and peri-urban locations can automatically be generalised across a municipality, or across the

nation as a whole. Such qualitative interviews, particularly when conducted on a relatively small

scale, are intrinsically ill-suited to producing broad empirically supported generalisations.816

But, returning briefly to the statistics considered in Chapter Three regarding people’s level of

access to water in the country, the stories shared above do provide some context to the bald

figures (from the General Household Survey 2014) that 86.5% of people living in KwaZulu-

Natal, and 90% nationally, have access to water for domestic use (see 3.2). Undoubtedly such

statistics fail to acknowledge that varying degrees of access to water exist. They are also unable

to appreciate the lived consequences variously of inadequate, intermittent, remote,

contaminated, and unaffordable water supply for those interviewed, and for people living in

similar material conditions. The statistics on access to water do provide a general picture, which

confirms that access to water remains problematic for many people. The stories of water-poor

people shared here, simply add humanity and nuance to what are already established and

generalized observations, and in so doing, these stories anthropomorphize statistical subjects

into people with a voice. While it is methodologically prudent to acknowledge the dangers of

generalizing from specific cases, this must not lead us to marginalize people’s experiences of

access to (in)sufficient water, particularly if our aim is to identify opportunities for new modes

of water governance, that may (already) be conceived in response to such experiences.

5.3.3 Stories from Durban

In February 2010 and November 2015 I conducted a series of interviews with water-poor

residents in the city of Durban. On both occasions staff from YWAM Durban assisted me.

Durban is a city synonymous with beaches, and home to Africa’s largest port. Water is central

to the city’s image and identity. But access to water for many of its poorest residents is a

constant struggle, compounded by moves to commercialize water resources, and to pursue full

cost recovery. The result is that access to water has emerged as a dividing line between those

who can successfully navigate a water-as-commodity paradigm, and those who cannot; instead

816

K F Punch Introduction to Social Research: Quantitative and Qualitative Approaches (3rd

ed, Sage Publications,

2014) 122.

203

experiencing dislocation from the dominant norm and exclusion from what their Constitution

states is their right.817

As illustrated below, not only can this dividing line be seen between richer

and poorer areas of the city, but even within the same community. Also, amongst my empirical

work in South Africa, it is here that examples of commons thinking in action can be glimpsed

most clearly, in relation to community organisation for water governance.

Burlington

Burlington is a large settlement on the outskirts of Durban, 20 kilometres inland (south-west)

from the beachfront.818

Part of eThekwini Metropolitan Municipality, it is comprised of a

combination of permanent dwellings and informal housing.819

By 2010 the municipality had

provided piped water to a number of homes here. But the cost of water from this source

quickly proved prohibitive for many residents. Those who became indebted eventually had

their pipes disconnected (see 2.3.1). I first visited Burlington in February 2010. I saw and heard

how some members of the community, many of whom had had their water supply

disconnected, had organised themselves into those who were able to collect water from the

standpipe (both those physically able and those who had time) and those who could not. Those

not able to use the standpipe (including older residents) were receiving a small amount of

money from their younger neighbours in order to ensure that their water bills were paid and

that they could continue to enjoy water piped to their homes; while able bodied residents relied

again on the standpipe. Community leaders met to decide whom to prioritise in this system,

and to monitor how it worked.820

Here, the community’s collective response to the specific problem of accessing water after

disconnection, evinces a corporate, or commons approach towards water access, rather than an

individualistic one. In this community, at that point in time, accessing sufficient water has been

framed as a communal endeavour, achievement of which requires a variety of responses from

people, dependent on their needs and abilities. This is explored further below at 5.4.

817

Constitution of the Republic of South Africa, Section 27. 818

See

<http://www.durban.gov.za/City_Services/engineering%20unit/Surveying_Land_Information/Documents/ETHEK

WINI%20WARD%20MAP%20NEW%20BOUNDARIES.pdf> (Last accessed 27 July 2016). 819

For definitions and clarification of informal housing/informal settlement see

<http://www.thehda.co.za/uploads/files/HDA_Informal_settlements_status_South_Africa.pdf> (Last accessed 27

July 2016). 820



for People, States and Corporations (Martinus Nijhoff, 2012) 111, 136.

204

More recently, in November 2015, I revisited this community, to find that access to sufficient

water remained a daily challenge for many. But once again this problem has led several

households to develop innovative responses (although not all of which reflect commons

thinking). Standpipes remain the primary means of accessing water for many in this

community. These are fed by long pipes, dug into shallow troughs, or running along the surface

of the ground. A number of residents living near these pipes have plumbed into them in order

to connect a water supply directly to their homes, as one resident, Sanele (S) explains:

NC: Where do you get your water?

S: This tap here, but before we applied [installed] it we used to take it from that neighbour [next

door].

NC: When did you get that one?

S: A few months back.

NC: Who is responsible for it, who put in, was it the municipality?

S: Yeah, we’ll go in to apply for it and then they put the meter in and connect the pipe from the

meter to the tap.

NC: So the municipality puts the meter in and then you have to do the pipe yourself?

S: Yeah.

NC: Have you ever had a problem with not having enough water?

S: No, I’m okay so far.821

However, in making these individual connections, water pressure for the communal standpipe

is reduced. Those residents who continue to rely on water from the standpipe experience

periods where little or no water is accessible. Living directly across the road from Sanele, three

sisters, Helen (H), Thembeka (T) and Phindile (P), explained how disruptive this low water

pressure can be:

‘[It is] a struggle because the water can’t come out because and all of these people are like taking

water in to their house and no water is coming out the standpipe’. 822

The stark contrast between the stories of these two households is a poignant reminder of how,

even on the same street, people’s relative wealth or poverty dictates their experience of access

to water. Sanele’s household could afford to undertake a self-connection, and to pay their water

bill, while Helen and her sisters could not. Not only does this mean that Sanele enjoys a water

tap in her home, but the fact that she now has such a tap actually impairs other people’s access

821



205

to water from the standpipe. Moreover, unlike in Msunduze, each standpipe in Burlington

must serve scores of families. Demand for water from the standpipe, combined with low

pressure, and intermittent flow, results in long queues at busy periods:

NC: How many buckets for a day do you use?

H: Six.

NC: And that’s for how many people?

H: Eleven.

NC: How many houses does the standpipe serve?

T: [laughing] Uncountable right now.

NC: Right, a lot? Like more than 10?

T: [laughs again] More than two hundreds!

NC: More than 200 for one standpipe? So when you go to get water, how long does it take you

to queue up?

T: It just depends, like when you come…

H: She also says because even if you are there in the line, because there’s just a very small

amount that comes out of the pipe, it actually takes long time, because people have done it

themselves, taken it in to their own houses.823

Acknowledging that for many South Africans piped water (predominantly accessed from a

standpipe) is not a reliable source, the government launched the ‘adopt a river’ initiative in

2010.824

This combines education to reduce river pollution with training and equipment to clean

and maintain rivers for use as sources of water for communities living close to them. Burlington

is one such area, and in 2013 sixty residents volunteered to clean and maintain their local river.

Every week volunteers, including Thembeka, continue to maintain their section of the river in

order to create a safe alternative to using standpipes for those still living without water

connected to their homes, as my interpreter, Sbo (S) explained:

S: Ok there is a river down there and that river, they actually try as much as they can to clean it.

The thing is, those guys put waste in there; they also put chemicals and stuff to fertilize

everything. These guys (community) even put fish inside the water just to make it more to see if

there is enough to be alive.

NC: Oh, so you put fish in to see if the fish are healthy?

823


<http://www.wrc.org.za/news/pages/adopt-a-riverlaunchesinlimpopoandkwazulu-natal.aspx> (last accessed 27 July

2016).

206

S: Yes. But also these guys also clean the pipes and the grasses around the area so that to make

the water clean. They are just volunteering for themselves to be healthy, have good water.825

Both of these stories from Burlington show that in the midst of poverty and hardship, and faced

with a regression in their level of access to water (for those having experienced forcible

disconnection), some residents in Burlington chose to engage with the problem of water

poverty from the perspective of shared needs, rather than focusing on their individual rights,

and what can be described as commons approaches to water governance are beginning to take

root in this community.

Elsewhere in eThekwini

Recent research undertaken elsewhere in eThekwini Municipality suggests that water-poor

residents are adopting an approach to water allocation that emphasises a responsibility to each

other, which is in contrast to the individualistic paradigm reinforced by an unreconstructed

notion of a right to water826

. eThekwini Municipality is considered a leader in sustainable water

services. Initiatives to reduce water wastage and improve water quality have been pioneered by

the municipality, with considerable success.827

Between 1999 and 2009 water was brought to

over a million people who previously lacked it828

. Such an approach, driven in large part by

municipal and state strategic goals, has been assisted in no small part by the prevailing mind-set

of residents, who fuse a strong ethic of individual responsibility for water use, with an

understanding of water as a common resource.829

On a larger scale, the Durban Group for Climate Justice,830

formed in 2004, has proved to be an

important practical and intellectual focal point for community organisation and action,

including in relation to water allocation issues. But perhaps more importantly, this civil-society

movement has galvanised disparate single issues around a coherent aim of climate justice831

.

Echoing previous discussion of the indivisibility of human security from ecological security, and

of social, from economic, from environmental sustainability, the Durban Group for Climate

Justice has successfully directed public energy and community involvement around the

825


S Hellberg ‘Water life and politics: Exploring the contested case of eThekwini municipality through a

governmentality lense’ (2014) 56 Geoforum 226, 230. 827

In 2014 eThekwini Municipality won the Stockholm Industry Water Award. See

<http://www.siwi.org/prizes/stockholmindustrywateraward/winners/2014-2/> (Last accessed 27 July 2016). 828

Ibid. 829

S Hellberg ‘Water life and politics: Exploring the contested case of eThekwini municipality through a

governmentality lense’ (2014) 56 Geoforum 226, 230. 830

<http://www.durbanclimatejustice.org> (Last accessed 27 July 2015). 831


125, 140.

207

coherent but multi-dimensional goal of pursuing climate justice at every appropriate scale:

Promoting a truly common endeavour.832

From the example in Woodford, of concerted community resistance to paying for substandard

water services, to spontaneous community organisation in Burlington in the face of

disconnections, and partnerships with local government towards ensuring a clean source of river

water, each of these stories contains an appreciation of water as a shared resource, accessible to

everyone. But they also reflect a strong social conscience and community cohesion which may

prove capable of overcoming the perceived weaknesses famously identified in Garrett Hardin’s

pessimistic treatise ‘The Tragedy of the Commons’, discussed in detail below.833

But, from the

empirical work I have undertaken, it is in Malawi that the clearest examples of commoning are

found.

5.3.4 Stories from Malawi

The geographical and jurisdictional focus of this thesis remains South Africa. But there are

some notable comparisons between the socio-economic rights in the Malawian Constitution,

and those in South Africa, and particularly between the perceived failures of such rights to

achieve access to sufficient water for people in both countries. As a result of this, the lacuna left

by inchoate socio-economic rights realization in Malawi has begun to be filled by innovative

approaches to water governance (amongst other things), which exemplify community

organization and commons thinking in action. Reflecting on these Malawian examples allows

inspiration to be drawn for greater use of commons approaches to water governance in South

Africa. To this end some appreciation of the legal and material situation in Malawi regarding

access to water is necessary, although a thorough study of comparative law in Malawi and South

Africa is not attempted here.834

Malawi’s history since British colonial rule, then under the one-party authoritarian government

of Hastings Banda, has left a legacy of ‘widespread, deep and severe’ poverty.835

Economic

marginalization, which perpetuates the conditions of poverty, is particularly relevant to the task

832

Climate justice is a popular activistic trope, but suffers from insufficient substantive analysis. Towards a

rectification of this see U Baxi ‘Towards a climate change justice theory?’ (2016) 7/1 Journal of Human Rights and

the Environment, 7-31. 833

G Hardin ‘The tragedy of the commons’ (1968) 162 Science 1243-8. 834

See J Ellis ‘General Principles and Comparative Law’ (2011) 22/4 European Journal of International Law 949-

971. 835

S Gloppen & FE Kanyongolo ‘Courts and the poor in Malawi: Economic marginalization, vulnerability, and the

law’ (2007) 5/12 International Journal of Constitutional Law 258-293, 261.

208

of achieving access to water.836

According to the International Monetary Fund (IMF) Poverty

Strategy Paper for Malawi,837

the water sector faces challenges including: degradation of water

resources; limited access to potable water; inadequate promotion of hygiene and sanitation;

inadequate water reservoirs; inadequate capacity of contractors and consultants. Consequently,

water services are identified as a ‘key priority area’ for poverty reduction.838

In Malawi 57% of the population live below the national poverty line.839

The WHO/UNICEF

Joint Monitoring Programme Report840

estimates that 96% of people in urban areas and 89% in

rural areas have access to safe water (designated as either water piped on to premises, or water

from other improved source). But these statistics have been criticized as considerably inflated.841

Water For People–Malawi, a water NGO based in Malawi’s second city, Blantyre, estimates

that only 38% of people living in the 21 low-income peri-urban areas of the city have access to

water that meets government standards. In the rural district of Chikhwawa only 42% have access

to safe drinking water. Access to sanitation in these areas is estimated to be 22% in peri-urban

Blantyre, and 8% in Chikhwawa using improved sanitation facilities.842

WaterAid estimate that

with a total population of 15 million people, two million lack safe access to water, and 10

million are without access to adequate sanitation.843

The Republic of Malawi Constitution844

and the Constitution of the Republic of South Africa845

share a common transformative aim. Both countries emerged, almost simultaneously, from

authoritarian and anti-democratic rule, with a clear desire to transform themselves towards the

upholding of constitutional values including human dignity, human rights, the achievement of

equality, constitutional supremacy, and the rule of law.846

847

836

Ibid. 837

International Monetary Fund (IMF) Malawi Poverty Reduction Strategy Paper 2012:

<http://www.imf.org/external/pubs/ft/scr/2012/cr12222.pdf> (Last accessed 27 July 2016). 838

Ibid 17. 839

United Nations Development Programme country information. Available at:

<http://www.mw.undp.org/content/malawi/en/home/countryinfo/> (Last accessed 27 July 2016). 840

World Health Organisation/ United Nations Children’s Emergency Fund (WHO/UNICEF) Joint Monitoring

Programme (JMP) for water supply and sanitation, 2015: Available at

<http://www.wssinfo.org/documents/?tx_displaycontroller%5Btype%5D=country_files> (Last accessed 27 July

2016). 841

Water for People, Country Report, Malawi. Available at <https://www.waterforpeople.org/where-we-

work/malawi> (Last accessed 27 July 2016). 842

Ibid. 843

WaterAid website. Available at <http://www.wateraid.org/where-we-work/page/malawi> (Last accessed 27 July

2016). 844

Republic of Malawi (Constitution) Act No. 20 of 1994, hereinafter the Constitution of Malawi, or the Malawian

Constitution. 845

Constitution of the Republic of South Africa, No. 108 of 1996, hereinafter the Constitution of South African, or

the South African Constitution. 846

Section 1 of the South African Constitution.

209

Chapter IV of the Malawian Constitution includes socio-economic rights to education,848

to

pursue a livelihood,849

and to fair labour practices,850

and a right to development851

(rarely

included in national constitutions852

), alongside civil and political rights to privacy,853

to freedom

of conscience,854

freedom of expression,855

and freedom of assembly,856

amongst others.

There is no explicit right of access to sufficient water (or other right to water) in the Constitution

of Malawi. However, consideration of the content and obligations associated with the right to

development clearly allows a right to water to be implied. Section 30 reads as follows:

(1) All persons and peoples have a right to development and therefore to the enjoyment of

economic, social, cultural and political development and women, children and the disabled in

particular shall be given special consideration in the application of this right. (2) The State shall

take all necessary measures for the realization of the right to development. Such measures shall

include, amongst other things, equality of opportunity for all in their access to basic resources,

education, health services, food, shelter, employment and infrastructure. (3) The State shall take

measures to introduce reforms aimed at eradicating social injustices and inequalities. (4) The

State has a responsibility to respect the right to development and to justify its policies in

accordance with this responsibility.857

The right to development appears in the Constitution as a justiciable right, as opposed to being

listed only as a principle of national policy.858

Consequently, subsections (2), (3), and (4), refer to

State obligations which are capable of being enforced by the Courts. Second, enjoyment of the

aspects of the right to development, set out in subsection (1), are contingent upon access to

basic resources. This is acknowledged in subsection (2), which provides a list of such basic

resources. It is necessary to interpret this list as being indicative, rather than exhaustive, since a

lack of access to water (not listed) would impede the right holder’s ability to enjoy the right to

development as least as much as would a lack of access to the requirements explicitly listed. A

similar interpretative argument is now well accepted regarding the absence of an explicit right of

847

See Chapters III and IV of the Malawian Constitution. 848

Section 25 of the Malawian Constitution. 849

Ibid. Section 29. 850



The right to development reflects the United Nations Declaration on the Right to Development, GA 41/128

(Dec. 4, 1986). For further discussion on the potential of the right to development to achieve social change

internationally, see S Marks ‘The Human Right to Development: Between Rhetoric and Reality’ (2013) 17

Harvard Human Rights Journal 137. 853

Section 21 of the Malawian Constitution. 854





See Sections 13 & 14 of the Malawian Constitution.

210

access to water from the Universal Declaration of Human Rights (UDHR), and the ICESCR, as

discussed in Chapter Two.

Section 211 (1) of the Malawian Constitution obliges the State to abide by international

agreements once ratified by Parliament, although international provisions must be incorporated

through an Act of Parliament before they become part of national law. Rights contained in

international agreements not yet incorporated, cannot be directly enforced in domestic courts.

While several international treaties relevant to the right to water remain unincorporated, the

Universal Declaration of Human Rights is now accepted as part of domestic law.859

In 2014 I spent some time with the NGO Water for People, in Blantyre, Malawi, interviewing

staff as well as residents in some of the communities where Water for People works. Country

director, Kate Harawa, summarized the effect on the Malawian government of their

international commitments as follows:

‘They have committed themselves to certain international agreements in terms of water, so the

Malawi government is obligated to provide that 27 litres of water per person per capita for the

people of the low income areas. But it doesn’t always meet that obligation.’860

In contrast to South Africa, in Malawi it is principally the paucity of litigation on socio-

economic rights, that limits the effectiveness of the country’s socio-economic rights to

contribute to a ‘transformative, pro-poor jurisprudence.’861

Since the entry into force of the 1994

Constitution, litigation on civil and political rights has dominated. Where social and economic

rights have received judicial consideration, they have been limited to the areas of employment

and education, and related to ‘non-poor’ litigants.862

One reason for this is that very few poor

people are in a position to pursue cases. Because the legal system is driven by litigation, the

Courts do not investigate cases on their own initiative, and so the opportunity for pro-poor

jurisprudence is limited by the absence of relevant litigation.

The barriers facing the advancement of pro-poor litigation have been broadly categorized as

practical barriers, and formal barriers.863

Practical barriers to litigation in Malawi include a lack

information on, and understanding of, individual rights. Also language has been identified as a

barrier, since the official language of the Courts is English, while the overwhelming majority of

859

See the case of Chihana v. Republic. Criminal Appeal No. 9 of 1992 (MSCA). 860



law’ (2007) 5/12 International Journal of Constitutional Law 258-293, 269. 862

Ibid. 863

SF Moore Law as Process: An Anthropological Approach (2nd

Ed, Routledge & Kegan Paul, 1983).

211

evidence given in courts is presented in local languages.864

Without an adequate grasp of spoken

and written English, and without access to representation (expanded on below), it is extremely

difficult to navigate the rules of procedure in order to begin a case, much less to progress it.865

Where cases are progressed in local languages, the need for translation slows the process,

further straining the Court system and increasing litigation costs.866

In contrast to South Africa, Locus standi requirements are strict, and there is no provision for

public interest litigation. Potential litigants must show that they have a direct interest in the case,

reducing the ability of NGOs and other organizations to litigate on behalf of others. This

effectively prevents test cases, whose transformative potential may be greater than those of

individuals.867

Also, in contrast to other developing-country jurisdictions, Court formality and

legal bureaucracy remain strict and complex, which further reinforces the practical requirement

for legal representation, but without steps to make this affordable, for instance, through court-

funded investigation.868

As a result many people’s experiences of insufficient access to basic

resources869

are interpreted only as the acute or chronic symptoms of poverty, but not also as

actionable violations of constitutional rights.

Even where litigation is pursued, it is not guaranteed to be pro-poor. One case decision (among

the few available) illustrates the reluctance of the Courts to harness the transformative potential

of Constitutional rights, even when faced with the opportunity to do so. In Mchima Tea and

Tung Estates Co. Ltd v. Concerned Persons,870

the plaintiff company owned a tea plantation on

land that had originally been acquired under racially discriminatory land laws, when Malawi was

a British protectorate. In the early 1990s people from surrounding villages, driven by land

shortages, occupied parts of the plantation. The plaintiff sued for the eviction of these squatters,

and was successful, despite the defendants’ argument that they had title to the land, based on

pre-colonial ancestral title. What is important about this decision is the failure of the High

Court to consider whether customary land law surrounding ancestral title could affect the

plaintiff’s ownership rights. In other post-Colonial jurisdictions, similar situations have led to

the acknowledgment that colonial titles to land did not extinguish traditional, customary titles.

864


law’ (2007) 5/12 International Journal of Constitutional Law 258-293, 274. 865

Ibid. 866

Ibid. 867

Ibid 276. 868

See B M Wilson ‘Claiming Individual Rights Through a Constitutional Court: The Example of Gays in Costa

Rica’ (2007) 5/2 International Journal of Constitutional Law 242. 869

See Section 30, Malawian Constitution. 870

Civil Cause 1665 of 1994 (HCM).

212

As Brennan J stated in the Australian case of Mabo v. Queensland [No. 2]:871

‘It is only the fallacy of equating sovereignty and beneficial ownership of land that gives rise to the

notion that native title is extinguished by the acquisition of sovereignty.’

Reticence to pursue a similar line of argument, and thereby, to consider the transformative

possibilities latent within the right to property,872

and the right to development,873

amongst others,

in the Malawian Constitution has limited the efficacy of such rights as transformative, or

development vehicles. The reasons for such a constrained decision may have included an

understandable desire not to be seen to give legal legitimacy to ‘land-grabbing’. But a lack of

willingness to probe the economic inequalities that have given rise to the present uneven

distribution of basic resources (like land and water) represents a clear limitation on the

effectiveness of rights talk in delivering transformative responses to poverty. Arguably here too,

a judicially managerial approach to the application of Constitutional rights can be identified.874

Faced with the dual reality that many Malawians are water poor, and that socio-economic rights

currently have limited ability to effect substantial change, some communities have been

galvanized to create innovative grassroots responses to governance of their water supply, with

impressive consequences.

Blantyre - Water Users’ Associations

In Malawi, the NGO Water For People has been working for over a decade with local

communities on the outskirts of Blantyre, to support and develop community-owned Water

Users Associations (WUAs), in order for people to gain sustainable access to clean, affordable

water. Water is purified and pumped from a municipal plant to multiple standpipes (called

water points) in each community. Access to water at each water point is controlled by the local

WUA. The purpose and scope of this initiative is explained in the following extract from an

interview I conducted with Andrew (A), a representative from Water for People:

A: We train the communities to maintain their own laws without having support from

somewhere but the community within should know how to manage their water points if they

break down: Management training.

871

175 CLR 1 (1992). 872

Section 28 (2) Malawian Constitution: ‘No person shall be arbitrarily deprived of their property’. 873

Section 30 (3) Malawian Constitution: ‘The State will take measures to introduce reforms aimed at eradicating

social injustices and inequalities’. 874



for People, States and Corporations (Martinus Nijhoff, 2012) 111, 131.

213

NC: So when you say manage, do you include repair or any sort of infrastructure or is it just

management of who gets the water?

A: Both repair and management of the actual borehole and also how they can contribute funds.

NC: So communities actually give money towards the management of the borehole?

A: Yes, they give to water point committee, and the water point committee keeps that money to

buy spares in case there is a need for repair.

NC: And what about access to the water? Is that regulated by the management committee as

well, sorry, the water point committee, so if one person wanted to get a certain amount of water,

does that have to go through the committee?

A: At the moment, all the households will have access to that water point, and access to the

water point if they pay enough of the tariff, they don’t pay per use, they pay a monthly tariff so

the water point committee goes around to collect that monthly tariff. For the people that don’t

have that tariff, an agreement is met, so they can pay in the future. It’s a community based

management so they understand which people have problems and when they can pay, but they

agree the amount to be paid per household no matter how much quantity they draw from the

water point. 875

Reflecting on the successes and challenges of one such WUA, in Nkolokott, a peri-urban

district of Blantyre, Pastor Elias Nowa (WUA Executive chairperson) said the following:

‘In the first place, the kiosks that were there, were being run by the small committees. But the

problem was that the people who were selling water by then were using the money for

themselves. They were not giving the money to the committee. As a result there was a bill to

Blantyre water board of 1.6 million to pay. Then later on Blantyre water board came in

partnership with Blantyre city council and water for people, their first goal, which is to form the

associations like ours.

Now we are functioning very well because of the number of success stories that we have. We

have managed to build a water tank at __ previously that location had problems with water,

875


214

there was problems with water supply, but since we built the water tank, the people are okay

now, they can be provided with water every time.

There are some private water sellers within the community. They are not allowed to sell water

but they do it on their own. The problem is they sell that water cheaper than from us. Illegal

connections. That’s one of the challenges. There are a number of them, but regardless of those

challenges we operate nicely. And maybe to add, one of the success stories is previously people

experienced water point diseases like cholera, but this time around our people are drinking

treated water.’876

Andrew’s explanation clearly emphasises that management of water resources in the

communities where Water for People partners, is community based. Embedding the

governance of water resources within the very communities being served allows those

administrating the water point to hear, evaluate and respond to both the needs of community

members, and to their ability to contribute. Such bespoke administration is illustrated further in

the following dialogue with Francis, one of the WUA administrators:

NC: Do you ever have any problems whereby a family, a household, can’t afford to buy water?

So they may come to a seller and say I need the water but I don’t have the cash. What do you

do about that?

F: Our water is sold at a cheaper price than those who are privy to other sellers, so we try to

convince them to at least give something.

NC: So you would take less than the usual amount if you needed to? If somebody came to you

and said I don’t have twelve, but I have five, would you accept that?

F: No, we don’t accept that.

NC: So presumably you feel confident that the twelve is the right price, that everyone can afford

it?

F: Yes.

NC: But in cases where households don’t have 12 kwacha, what would you do?

876


215

F: It could be a widow, could be an old lady, very old lady. We always get our people to at least

work somewhere in order to get something for the water. We have chiefs in our committees, so

we always encourage them to go home and communicate with their people.

NC: If a family said we couldn’t afford it, then the chief would ask them why?

F: Yes.877

As Pastor Nowa recounts, such a governance structure is facilitating affordable, access to

sufficient safe water, thereby meeting the requirements of GC 15 for those community

members. Furthermore it represents a degree of collaboration between local government

(municipality), NGO and community members in order to design, implement, and maintain a

sustainable and equitable model of water governance on a local scale.

5.3.5 Summary

The foregoing stories recount an array of problems facing people’s regular access to sufficient

water. These problems can be broadly categorised into two sets: those afflicting rural

communities, and urban communities respectively. Problems in rural areas tend to include

poor water quality (visibly dirty and/or contaminated water, linked to ill health), as well as issues

of proximity and the transportation of water. Urban water access problems revolve most

obviously around the affordability of accessing a sufficient quantity of water from improved

sources, as well as intermittent issues of supply.

In places these stories also reveal instances of commons thinking in relation to water access.

Summarised here, four distinct examples of commons thinking are discernable, representing an

increasingly well formed (and formalised) application of commons approaches to water

governance.

The first, and most subtle example is from Nombuso Khaba’s account (interview #8) of how

her municipality changed its policy on charging for water in response to community protest.

This suggests a change in mind-set among that community of water users, and a shift in the

dynamic driving their own interpretation of their right to water; from being a right conferred

upon passive subjects, to one that is there to be claimed, grasped and inhabited by active and

877


216

engaged citizens. Whether such contestation will herald any deeper direct community

involvement with water services remains to be seen.

The second example comes from Burlington, and from the response of residents to forcible

water disconnections. The decision of people to pool resources, prioritise the most vulnerable,

and to work together to deliver water where it was most needed represents an inspiring example

of organic, self-organising, and temporary action that clearly reflects a commons ethos, even if

its organisational structures are minimal and relatively informal. Also of note is the absence of

local government or NGO involvement. Rather, this response to water-poverty was generated

by the community, for the community.

Staying in Burlington, the third distinct example of commons thinking in action comes from the

adopt-a-river initiative, recounted by Thembeka and Sbo (interviews #13 and 14). While this

reflects a similar approach to water access as the previous examples (demonstrating active

involvement in grasping their right to water), it also represents a degree of collaboration

between community residents and local government, assisted by a relatively formal structure

requiring initial training and the provision of equipment. Here the capacity of the community to

take a commons approach to their water resource has been enhanced by this collaboration. But

in contrast to the final example, this collaboration has been temporary, and residents have

quickly been left solely responsible for the on-going implementation of this initiative. Perhaps it

is more accurate then, to characterise the involvement of local government as acting as a catalyst

for the community’s own efforts, rather than in any fuller collaboration.

The fourth, and clearest example of commons thinking in action comes from the WUAs

around Blantyre in Malawi. As Andrew, Francis, and Pastor Elias recount (interviews #16-18),

the creation and maintenance of WUAs by community members has been achieved in

partnership with the NGO Water for People, and in communication with local government.

Crucially start-up costs, including infrastructure and training have been provided by Water for

People, and although established WUAs are responsible for their own administration

(including the paying off of accrued arrears), they remain closely accountable to the NGO as

part of a stable long-term collaboration, committed to ensuring community managed water

governance.

Each of these examples has led to some demonstrable gains in people’s experience of a right of

access to sufficient water. But some gains are more modest than others. For Nombuso’s

community, the affordability of water is now one less obstacle to accessing sufficient water

217

(although it is unclear how much of an obstacle it ever was). For Burlington residents plunged

into crisis, their self-organised efforts offered protection to those most at risk of water poverty.

Longer term, adopt-a-river has provided an alternative (and perhaps more sustainable) source

from which to access sufficient water. But the scheme’s longevity must be questioned in relation

to the lack of on-going support and the considerable ‘buy-in’ required from residents. Only in

Blantyre does the work of the various WUAs represent significant and sustained improvements

in the realisation of the (human and/or constitutional) right to water. Perhaps the correlation

between the most well developed governance structures and the greatest practical gains should

not come as a surprise? Certainly such anecdotal evidence as to the success of this form of

commons approach should be noted in any consideration of how commons modes could be

expanded (this is briefly addressed at 5.6).

Following all of these stories, the next section charts the history of the commons as a mode (or

broad collection of modes) of thinking and action, before theorising on the importance of the

commons for contemporary water governance. After having glimpsed some more or less

established examples of commons thinking in action in relation to water governance, it is

important to ground these examples within a broader and deeper tradition of the commons, in

order to better understand the (positive and negative) potential that commons approaches to

water governance may have in helping to realise access to sufficient water for everyone in South

Africa.

5.4 The commons in theory and in practice

The commons is a new way to express a very old idea, that some forms of wealth belong to all

of us, and that these community resources must be actively protected and managed for the

good of all878

. In short, the commons means ‘what we share’, so unsurprisingly it has been

expressed as encompassing a host of assets from clean air, to languages, music, wildlife, judicial

systems, the internet, and fresh water, amongst many more.879

‘Commons thinking’ can be

defined as any ideas for the enjoyment of such assets that promote sharing and encourage

equitable and sustainable use. Since the impetus of commons thinking is that commons assets

are for everyone to enjoy, where the commons are finite (natural resources for instance), use

must necessarily be equitable if everyone is to benefit from them now, and sustainable if

878

<http://www.onthecommons.org/> (Last accessed 27 July 2016). 879

J Walljasper All that we share: A field guide to the Commons (The New Press, 2010) 2.

218

everyone will continue to benefit from them into the future.880

As the Biblical quotation at the beginning of this chapter attests to, commons thinking need not

be limited to intangible assets and natural resources, but at times has also been applied to ‘all

things’, including personally-owned property and possessions.881

Indeed, the rejection of claims

to private property in this Biblical story illustrates the dichotomy at the heart of much of the

scholarship and activism around the commons: that commons thinking and praxis sit in

confrontation to the concept of private property. The validity or otherwise of this perception, as

well as the antagonism that it generates will be analysed in more detail below.

5.4.1 Historical and contemporary examples of commoning

The following is not intended to provide a comprehensive history of commoning. Rather its

purpose is to support the assertion that commons approaches to resource governance have

existed for a long time, and have taken many diverse forms, and that in light of the long and

rich tradition of commoning, a serious appraisal of the contemporary potential of commons

thinking, applied to water governance, is warranted.882

Since pre-history reciprocal altruism and collective action have been essential features of the

development of agriculture and pastoralism, and consequently, essential to sustaining the

human species. In the territory of South Africa, around AD 3000 hunter-gatherers acquired

livestock, and consequently transitioned from hunting to herding duties that necessitated

sustained co-operation between community members, in the incessant search for grazing land

and water. Between AD 300 and 1000 crop cultivators moved in to the Transvaal, Kwa-Zulu

Natal and the Eastern Cape, and by the end of the Late Iron Age (circa. AD 1000) livestock and

agriculture were important subsistence activities. They also began to form the basis of trading

networks that extended northwards to modern day Zimbabwe. It is important to note that these

Iron Age communities were far from egalitarian. They displayed strict gender divisions of

labour, and ‘a highly patriarchal system of social organisation and authority.’883

As such, these

early communities would be problematic archetypes of commons thinking in action. However,

within these communities, the approach taken to governing land and water is instructive,

offering a ‘proto-commons’ insight into how indigenous peoples have effectively blended

880

Ibid. 881

See The Bible, New International Version, Acts chapter 2, verses 44-45. 882

Although the author accepts that there is not an inevitable connection between the longevity of an idea, and its

utility. For an amusing take on this insight, see T Minchin ‘White wine in the sun’. Available at:

<https://www.youtube.com/watch?v=-0s68-GLGWY> (Last accessed 27 July 2016). 883

R Ross A Concise History of South Africa (Cambridge University Press, 1999) 12-15.

219

cultural norms with ecological imperatives. As discussed in Chapter Three (3.3) African

customary law forbade private ownership of land or water, instead placing these resources (both

of which are essential to cattle-grazing and agriculture) under the control of the chief for the

benefit of the community, in order to avoid the potentially fatal consequences of exhausting

them.884

Governance decisions around land and water were made at the level (or scale) of the

community, rather than at the level of an individual or a single family. Decisions made at this

scale were generally able to fulfil the dual requirements of meeting the community’s immediate

subsistence needs, and of sustaining land and water resources into the future.885

Indeed, as the

archaeological evidence of wide-ranging trading networks shows, not only were material

subsistence needs met, surplus was also generated, with which to exchange.886

There are numerous historical examples across the world where communities have regulated

resources in order to avoid their depletion, while maintaining adequate living standards. Indeed

some authors describe the standard of living in communities where resources have been

managed on a sustained yield basis, as ‘generally affluent’.887

The Acholi tribe in modern day

Uganda enforced a system of closed seasons, whereby hunting was restricted and regulated in

order to ensure the on-going availability of game.888

In Europe there is a long history of managing some grazing lands and forests as common

property resources, some of which remain.889

Conditions for grazing were set between users, for

example that only grazing during daylight hours was permitted. Where overgrazing became a

threat, ‘stinting’ was imposed, where common users were assigned quotas of animals they could

graze.890

In England, King John’s signing of the Magna Carta in 1215, and the Charter of the

Forest, signed by Henry III in 1217 contain a range of legal rights to commoning.891

One historical example of commoning in relation to water resources comes from the Spanish

system of cooperative irrigation known as huerta.892

Dating back to the 15th

Century, and

884


centuries from 1652 AD to present’ (2009) 35/5Water SA 693-710, 695. 885

S V Ciriacy-Wantrup & R C Bishop ‘ “Common Property” as a Concept in Natural Resources Policy’ (1975)

15Natural Resources Journal 713-727, 717. 886


Ed, Blackwell Publishers, 2000) 8. 887

S V Ciriacy-Wantrup & R C Bishop ‘ “Common Property” as a Concept in Natural Resources Policy’ (1975) 15

Natural Resources Journal 713-727, 718. 888

Ibid 717. 889

See the ‘Foundation for Common Land’ <http://www.foundationforcommonland.org.uk/rights-of-common>


Ibid 718. 891

These include rights to grazing, hunting and foraging in order to earn a living from forests. See P Linebaugh The

Magna Carta Manifesto: Liberty and Commons for All (University of California Press, 2008). 892

D Wall The Commons in History: Culture, Conflict and Ecology (MIT Press, 2014) 35.

220

beginning in the arid areas around Valencia, huerta regulated the use of irrigation canals to

provide sufficient water to support agriculture in the region. Each huerta determined their own

rules regarding water quotas. They also agreed systems for monitoring and punishments for

users who infringed the community’s rules. Each huerta was overseen by a syndic, who was

elected from within the huerta, and served a two or three-year term. This system of water

commoning has influenced similar approaches to water regulation in the Philippines, and in

California, and remains in use in some areas of rural Spain and Portugal.893

Each of these examples asserts that people can, and do operate cooperatively, sacrificing

immediate individual gain for the sake of collective interests regarding the governance of

resources, where there is a social framework to facilitate such a commons approach.894

While it

is also true that humans have the propensity to act selfishly - as utility-maximising individuals –

the above examples affirm that such propensities are not inevitable, and that other ways of living

are imaginable and achievable. Indeed Roy’s insight (quoted at the beginning of this chapter) is

pertinent here. Where the current paradigm is failing (in this case failing to ensure access to

sufficient water for everyone), it is wise to heed those whose imagination (and experience) is

outside it.895

Vernacular law, social norms, and legal theory

The above historical examples of commons thinking in action also illustrate the importance of

having a governance structure to establish rules and responsibilities, and to regulate people’s

behaviour (to greater or lesser degrees). Specifically in relation to commons modes of resource

allocation, such regulation has recently been termed ‘vernacular law’896

in order, simultaneously,

to affirm its philosophical connection to law (as defining rules, practices and norms of

behaviour), and to distinguish it from ‘State law’ (which describes law that is officially sanctioned

- emanating from the ‘proper’ law-making institutions, and abiding by formal constitutive

procedures897

). But broadly defining law in this way, and identifying ‘law-like’ systems and

structures, has a longer tradition. Llewellyn distinguishes between (proper) law and that which

893

Ibid 35-6. 894

D Bollier & BH Weston “Reimagining ecological governance through human rights and a rediscovery of the

Commons” in A Grear & E Grant (eds) Thought, Law, Rights and Action in the Age of Environmental Crisis

(Edward Elgar, 2015) 251, 255. 895

A Roy ‘The Trickledown Revolution’ Outlook, 20 September 2010. Available at:

<http://www.outlookindia.com/article/the-trickledown-revolution/267040 >. (Last accessed 27 July 2016). 896

D Bollier & BH Weston ‘Green Governance: Ecological Survival, Human Rights, and the Law of the

Commons’ (Cambridge University Press, 2013) 104. 897

Ibid.

221

performs ‘law-jobs’, but that does not qualify as law.898

Fuller describes ‘law’ that has not been

created by official sanction (i.e. ‘vernacular law’, using Bollier & Weston’s typology), but that

nevertheless has ‘found direct expression in the conduct of men toward one another’, as

‘customary law’899

(distinct from customary international law, as a source of international law, but

similarly reflecting acknowledgement via attitude and action). Such customary law can be seen

in action in for example trade unions, clubs, churches and universities, wherever ‘miniature

legal systems’900

are concerned with member’s duties and entitlements. Indeed, Fuller argues

that not only is customary law ubiquitous, but that understanding it is imperative to an

understanding of ordinary law (State law).901

Customary law provides us with a ‘language of interaction’, which projects some degree of

predictability upon otherwise random social interaction and conduct. Understood in this way it

is apparent that customary law fulfils a similar function to State law: regulating expectations

about behaviour.902

Moreover, the behavioural expectations that are regulated are not neutral.

Rather, the behaviour that is to be expected is that which is deemed acceptable. In other words

customary law does not just provide predictability to erstwhile random interactions. It also

‘facilitates interaction on a level more profitable for all concerned’.903

Seen in this way, Fuller’s

claim that ordinary law can only be understood by an appreciation of customary law becomes

compelling. It reconnects the purpose of the ‘law’ with its imperative, and in so doing, reminds

us of the good reasons why such an imperative exists. Where this connection has been severed,

the imperatives of ordinary law, for instance the crime of murder, can become divorced from

its interactional origins, wherein refraining from murder was accepted not just as being

predictable, but profitable (generally!) for all concerned.

Applied in the context of commons approaches to water resource allocation, reconnecting the

(State/ordinary and vernacular/customary) law on access to water, to its interactional origins

generates a powerful moral claim. At the level of State law, as discussed at length in Chapter

Four, the currently configured individual right of access to sufficient water, is prone to being

interpreted in isolation from the complex socio-economic and environmental contexts that

make access to water a moral claim. Therefore, re-engaging with the social, economic and

environmental factors that generated the right is essential to its appropriate interpretation and

898

K N Llewellyn ‘The Normative, the Legal, and the Law-Jobs: The Problem of Juristic Method’ (1940) 49/8 The

Yale Law Journal 1355-1400. 899

L Fuller ‘Human interaction and the law’ (1969) 14/1 The American Journal of Jurisprudence 1-36, 1. 900

Ibid. 901

Ibid 20. 902

Ibid. 903

Ibid 21.

222

application.

Regarding vernacular law, which regulates the behaviour of those engaged in commons modes

of water governance, maintaining a clear bond between the rules governing the actions of a

WUA in Blantyre for instance, and the profitability or desirability of the interactions that these

rules facilitate, must help to retain the moral character of such commons endeavours. This

could protect the application of such ‘law-like’ rules from the same tendency towards

technocratisation, as evidenced by the interpretation, in Mazibuko, of the right to water in State

law. Returning briefly to interview #18 above, Francis’ acknowledgement that they will always

work with people to understand their situation, and to find a solution to their needs, is one

small illustration of the connection that currently exists between the vernacular law of a WUA

and its interactional origins: to secure ‘water for everyone, forever’.904

The importance of

characterising access to sufficient water as a moral claim is elucidated on below at 5.5.

Practically too, the concept of vernacular law (or perhaps more accurately, the

acknowledgement of vernacular law in action) is important in evaluating the appropriate role of

commons approaches to water governance. The ‘State law’ on access to sufficient water is

simple enough to identify. Yet a central claim of this thesis is that this law is inadequate to the

task of ensuring access to sufficient water for everyone. But because of its status as ‘State law’,

despite its perceived inadequacies, it is supported by a formal legal structure of promulgation

and enforcement. In contrast, what can be described as the vernacular law relevant to commons

approaches to water governance in Durban or Blantyre for instance, lacks comparable formality

or enforceability. Such a lack should not be dismissed lightly. But neither should the relative

absence of formality or enforceability lead to premature conclusions about the (un)suitability of

commons approaches. Here again the challenge may be to rethink, or reimagine the

assumptions inherent within the dominant paradigm. The water users associations around

Blantyre operate within a readily identifiable and agreed framework of regulation, although,

crucial to the success of these initiatives, there is sufficient flexibility to promote maximal

enfranchisement and community involvement. Returning to the residents of Burlington, whose

efforts to respond positively and collectively to their experiences of water poverty have led them

to engage in various collaborative projects: they are operating without a formal set of externally

imposed rules and sanctions. Instances of informal arrangements are also sparse. But rather

than excluding such projects from the picture of water governance in that area, their efforts can

be identified and affirmed as examples of ‘self-organised governance’ springing from bottom-up

904

This is the motto of the NGO Water for People, adopted by the WUAs that it partners with around Blantyre,

Malawi. See < https://www.waterforpeople.org> (Last accessed 27 July 2016).

223

responses to a complex system of water governance.905

Such a description is in sharp contrast to

the archetypal top-down ‘command-and-control’ regulation, so familiar in State law.906

This

contrast illustrates a wider shift from government to governance, explained below.

Government to governance

The steady emergence of new regulatory modes is challenging the State’s historically central

(indeed, virtually exclusive) role in regulation. Such new modes of regulation prioritise

‘processes through which collective goals are defined and pursued in which the state (or

government) is not necessarily the only or most important actor.’ 907

The consequence of this is

that regulation is changing, from centralised, top-down government, to more disaggregated,

non-centralised and less hierarchical regulatory forms.908

The shrinking role and importance of government, as a result of the steady move from

‘government to governance’909

is well documented.910

Kotze & Fuo explain this shift in light of

the forces of globalisation, and by eight manifestations of globalisation in particular:

‘significant advances in communication technology and social media that are connecting the

world; by modes of travel that enable global connectivity; by systems of free trade; by the

creation of regional and international superstructures of governance such as the European

Union; by the rise of epistemic networks and non-governmental organizations as well as non-

state, but law-like, rules; by the emergence of treaty regimes and international norm producing

functional non-state organisations such as the World Bank that enable inter-state cooperation in

905

It is clear that the system of water governance is complex. Beginning with the Constitutional right of access to

sufficient water, the system of water governance is then influenced by relevant legislation, national water policy, and

metropolitan and local municipal policies. But the complexity continues, since, as evidenced, these layers of

legislation and policy do not result in access to sufficient water for everyone. Therefore more layers of (less formal)

governance are created, encompassing various (sometimes competing, sometimes overlapping) regimes of

communal and/or personal water provision (taps to individual dwellings versus communal standpipes), voluntary

initiatives, informal neighbourhood subsidies etc. 906

The terms ‘self-organised governance’ and ‘command and control regulation’ are taken from D Bollier & BH

Weston ‘Green Governance: Ecological Survival, Human Rights, and the Law of the Commons’ (Cambridge

University Press, 2013) 81. 907

M Betsill Michelle & H Bulkeley ‘Cities and the Multilevel Governance of Global Climate Change’ (2006) 12

Global Governance 141-159, 144. 908

See generally, L J Kotzé Global Environmental Governance: Law and Regulation for the 21st

Century (Edward

Elgar, 2012). 909

See for a detailed discussion of the various aspects related to this emerging expression, R Bellamy and A

Palumbo (eds) From Government to Governance (Ashgate, 2010).

910

The difference between “government” and “governance” lies nestled in the globalisation paradigm, where

government refers to the orthodox, traditional and hierarchical notion of formal Westphalian state-centred

governance, while governance means the direct opposite, i.e., informal, flexible, hybrid and multi-level governance,

or “an emerging political strategy for states to redefine [their] role in society.” P Jon ‘Introduction: Understanding

Governance’ in P Jon (ed) Debating Governance: Authority, Steering and Democracy (Oxford University press,

Oxford, 2000) 2.

224

specific areas; the steady growth of economically dominant and politically influential

multinational corporations that function in an intermeshed transnational setting; and by the

emergence of global regulatory problems such as climate change that require multi-stakeholder

solutions and that are affecting everyone everywhere with scant regard to physical borders or to

the sanctity of state sovereignty.’911

Doubtless, there are also other bottom-up factors affecting the government-to-governance shift.

Catalysed by unequal power relations, animated by a redistributive ethos, and evident across an

array of subaltern cosmopolitan politics, these factors together form what Santos describes as

‘counter-hegemonic globalization’.912

In the context of this thesis, the term ‘governance’ is deliberately used to denote flexible,

informal and multi-level regulation, which are potentially more appropriate attributes for

effective regulatory strategies, and more complementary to commons thinking than is

traditional, hierarchical regulation.913

5.4.2 Critiquing the commons

Commons thinking seems well placed to critique the limitations and failures of existing

‘State/Market’914

institutions, and in so doing, to create space to imagine, and to implement new

forms of provisioning. Given its necessity as a prerequisite for life, water is increasingly being

understood as one such form of wealth for which commons thinking seems appropriate.915

To

quote Bollier and Weston:

‘[T]he Commons is not an ideological agenda or an impractical, utopian vision. It is a useful

new/old framework and vocabulary for building a new societal vision and for imagining

constructive alternatives to the neoliberal economics and policies that now enclose (commodify

911

L J Kotzé & OFuo ‘Bridging the public-private regulatory divide: South African mines and the right of access to

water’ (2016) 34/3 Journal of Energy and Natural Resources Law 285-312, 292. Also, for a general discussion on

the impact of globalization on environmental governance, see L J Kotzé Global Environmental Governance: Law

and Regulation for the 21st

Century (Edward Elgar, 2012). 912

See chapters 5 and 9: B Santos Towards a new legal common sense (Butterworths, 2002). 913

See variously R Bellamy & A Palumbo (eds) From government to governance (Ashgate, 2010), P Jon

‘Introduction: Understanding governance’ in P Jon (ed) Debating Governance: Authority, Steering and Democracy

(OUP, 2000).

914



(Edward Elgar, 2015) 251, 251. Here the term State/Market, used by Bollier & Weston indicates the close

relationship between the institutions of state and market, which reflects a shared commitment to a neoliberal

political and economic agenda. 915

<http://www.ourwatercommons.org > (Last accessed 27 July 2016).

225

and privatise) shared resources…’916

It is also becoming acknowledged that understandings of water that are limited to discourses of

water rights and water commodification, perpetuate an unsustainable and unhelpful ‘bifurcation

between nature and culture’,917

which must be creatively reimagined.

In contrast to individualised consumption within a rights-based paradigm, a commons strategy

emphasises shared consumption. This echoes the emphasis on interconnectivity within IWRM,

and within South Africa’s Second National Water Resource Strategy (see Chapter Three). But

unlike IWRM, a commons approach would avoid emphasising individual water rights, in

favour of communal needs. A commons strategy would encourage decisions on water allocation

to be made at the lowest appropriate level, involving all users to input into collective decisions

that transcend a compromise of competing interests, in favour of corporately ‘owned’ allocation

decisions that best serve each community.

Institutions and modes of organisation based around the concept of the commons have

positively contributed to natural resource management since ‘economic pre-history’918

and

commons ideas and praxis are resurging. Faced with the increased commodification of

resources, services and areas of life previously managed as public or social goods and the

disenfranchising consequences for those excluded as a result, commoning is emerging as a

radical alternative to the dominant contemporary paradigm.

The tragedy of the Commons?

Written nearly five decades ago, Garrett Hardin’s seminal treaties, ‘The Tragedy of the

Commons’919

has proved to be extraordinarily influential in dissuading social scientists from

serious appraisal of the potential of commons thinking.920

Based on Malthusian predictions of

population growth, Hardin asserts that ‘the inherent logic of the commons remorselessly

generates tragedy.’921

Using the illustration of a common pasture, Hardin explains that it is

everyone’s propensity to graze as many cattle as possible on this common resource in order to

916

D Bollier & BH Weston “Reimagining ecological governance through human rights and a rediscovery of the

Commons” in A Grear & E Grant (eds) Thought, Law, Rights and Action in the Age of Environmental Crisis

(Edward Elgar, 2015) 251, 252. 917

A Neimanis ‘Alongside the right to water, a posthumanist feminist imaginary’ (2014) 5/1 Journal of Human

Rights and the Environment 5, 5. 918

S.V Ciriacy-Wantrup & Richard C. Bishop, ‘Common Property as a Concept in Natural Resources Policy’

(1975) 15 Natural Resources Journal 713. 919

G Hardin ‘The tragedy of the commons’ (1968) 162 Science 1243. 920

D Feeny et al ‘The Tragedy of the Commons Twenty-Two years later’ (1990) 18/1 Human Ecology 1-18, 2. 921

G Hardin ‘The tragedy of the commons’ (1968) 162 Science 1244.

226

‘maximise his gain’.922

In so doing, each herdsman will continue to add to his or her own stock

of cattle, judging that adding each new head of cattle will benefit that herdsman alone (since

when the cattle are sold, the proceeds go to each individual herdsman). Meanwhile, the

negative effect of one more head of cattle grazing on the commons is shared among all of the

herdsmen.923

The consequence is the eventual ruination of the common pasture, as a result of

overgrazing, without any effective incentive to avoid this.

In reaching his conclusion that ‘freedom in a commons brings ruin to all’,924

various

assumptions are made about the (lack of) relationships and regulations between the herdsmen.

As the above historical example from European common lands illustrates, the imposition of

‘stinting’ in order to avoid overgrazing was one regulatory tool that was widely used to avoid

overgrazing.

Leaving assumptions about practicalities aside momentarily, Hardin makes a more serious, and

more troubling assumption about people’s inescapable drive towards individual utility

maximisation. But despite Hardin’s warnings that the rational actions of private individuals to

maximize their gain would inevitably lead towards a degeneration of commonly held resources,

recent work on commons strategies challenge this. Instead, David Harvey questions the

paradigmatic lens through which Hardin’s common pasture is glimpsed:

‘The real problem here, it seems to me, is not the commons per se. It is the failure of

individualized private property rights to fulfil our common interests in the way they are

supposed to do.’925

In other words, Hardin’s common pasture, if more effectively governed regarding the rights and

responsibility of users, is perfectly capable of avoiding his pessimistic predictions. But while

Bollier and Weston remind us that regarding resource allocation, human attributes of

cooperation and self-sacrifice do exist, they accept that these attributes are joined by self-

interest.926

Therefore it is important not to ignore Hardin’s warnings altogether. The central

problematic of the commons is described as follows by pioneering commons scholar Elinor

Ostrom:

922

Ibid. 923

Ibid. 924

Ibid. 925

D Harvey ‘The Future of the Commons’ (2011) Radical History Review 104. 926



(Edward Elgar, 2015) 251, 255.

227

‘How a group of principals who are in an interdependent situation can organize and govern

themselves to obtain continuing joint benefits when all face temptation to free-ride, shirk or

otherwise act opportunistically.’927

The above examples, from Burlington in particular, illustrate this tension between cooperation

and self-interest, which any endorsement of commons approaches must acknowledge. In that

community, the challenge of securing access to sufficient water is being met variously by those

prioritising sustainable access for the community at large, and by those whose independent

actions to pipe water to their own homes leaves their neighbours without.

Perhaps such examples of commoning, or commons thinking, are too ephemeral to formally

categorize or concretize. Indeed, as noted previously, the community’s attitudes and response

in Burlington have very little rigid structure with which to ensure that future challenges will be

met using the same commons approach (although it must be noted that there have been moves

towards identifying specific members as decision makers). But this lack of rigid structure should

not lead us to conclude that commons approaches lack resilience, nor that they will necessarily

be temporary. Rather, it is precisely the relative lack of formalised structure which may allow

such commons approaches to withstand changing environments and challenges. Ostrom’s

insights are particularly pertinent here, as she explains that traditionally, advocates of state

resource allocation and advocates of privatisation have both relied on the assumed superiority

of top-down institutional design. Institutional change, it is assumed, (including that required to

give effect to the right to water) must come from outside the community and be imposed on

those individuals affected928

. This assumption rests in turn on a further assumption, that there is

a dichotomous choice to make between these two top-down modes: State or private control

must be the correct route. The benefit of commons approaches, manifest in more or less fluid

form, is that they are well placed to fill the gaps between competing regulatory approaches,

which almost inevitably appear while the question of (water) resource allocation is being

inadequately addressed through the complex, overlapping, sometimes competing paradigms of

rights, development and commodification. Ostrom’s vision here is to see the creation of a ‘rich

mixture of ‘private-like’ and ‘public-like’ institutions defying classification in a sterile

dichotomy’929

. Such a definition is not out of place in describing the various commons

approaches observed above. Indeed ‘adopt a river’ initiatives, pioneered in eThekwini, provide

927

E Ostrom Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge University

Press, 1990) 42. 928

Ibid 14. 929

Ibid.

228

useful examples of precisely such a classification-defying hybrid: A mixture of public resources

catalysing community action.

Romanticizing community control of resources must be avoided, not least because inequitable

power relations can exist at small as well as large scale. Therefore there is potential for any

institutional design and praxis to discriminate and disenfranchise. Also, it must be

acknowledged that commons endeavours face myriad challenges around resourcing and

sustainability, as well as the ever-present possibility that people will default to opportunistic

(in)action. Burlington’s adopt-a-river initiative, described above, began with sixty volunteers. In

November 2015 there were only ten.

While we must be mindful of these problems, commons ideas are on the rise930

. This is driven,

in part by the failures of litigation on the right to water, and of ‘rights-talk’ more generally, to

incorporate environmental protection, and even to deliver resources to all individuals

effectively. Indeed, what the Constitutional Court has identified as a crucial function of litigation

on social and economic rights931

– to provide crucibles within which new socio-economic

settlements are created and recreated – is also a function that may be ascribed to the commons.

Indeed, the commons may contain a degree of potential for positive change, which the Court’s

jurisprudence of reasonableness has so far failed to deliver:

‘In a commons, ordinary people can deliberate with each other and have their concerns heard…

to formulate and ratify the rules that will affect their everyday lives.’932

Commons strategies, if innovatively applied to water allocation, may be able to avoid the

limitations of the right of access to sufficient water, restating sufficient water as a moral claim,

made corporately by and for people within their community. Commons solutions, whether

long-lasting or temporary, have the potential to give form to the erstwhile unheard voices of the

water poor and to respond appropriately through innovative and inclusive social/institutional

arrangements.

930


125, 138. 931




(Edward Elgar, 2015) 251, 254.

229

5.4.3 Property and the right to water

The various stories shared above testify (in the main) to the fact that neither a human right to

water (expressed in its current form) nor a constitutional right of access to sufficient water can

be relied on to provide equitable and sustainable water allocation for everyone: To this end the

right to water (expressed in international human rights law, and constitutionally, in South

Africa) remains useful but limited. Where these stories also recount, or even hint at, examples

of communal, grass-roots responses to water poverty, it is possible to identify and to affirm

commons thinking in action, governed by vernacular law.

Together, the limitations of rights-talk, and the green shoots of commons examples should lead

us to consider alternative approaches to water governance that are embedded more firmly in

the context of their community (while probably being less formally constituted). To this end,

and inspired by the motif of ‘reimagination’, attention now turns to the relationship between

access to sufficient water and the concept of property. Although perhaps not immediately

apparent, (a particular conception of) property is crucial to understanding and critiquing access

to water in a water-as-commodity paradigm. Indeed, people’s experience of water-poverty must

lead us to imagine new conceptualizations of property that are more sensitized to the needs of

those people currently economically excluded from the ‘right’ to participate in the market for

water sufficiently to meet their needs, and who instead, have to rely on a favourable

interpretation of the constitutional right to sufficient water.

Bromley & Cernea amongst others identify four property paradigms: state property, private

property, open-access, and common property933

. Throughout this discussion, mention of

‘commons’, ‘commons approaches’, ‘commons thinking’, and ‘commoning’ all refer to the

fourth paradigm; common property. As defined above, this paradigm embodies the idea that

some resources belong to everyone, and that these common or community resources must be

actively protected and managed for the good of all934

. However, applied to particular resources

in real-life situations, common property does not mean ‘everyone’s property’935

. It must be

distinguished from an open access or ‘non-property’ paradigm, where no institutional

arrangements exist regarding a particular resource. Instead, a common property paradigm

confers ownership and management rights over a resource upon a ‘corporate group’, whose

933

D Bromley & M Cernea, ‘The Management of Common Property Natural Resources: Some Conceptual and

Operational Fallacies’ (1989) 57World Bank Publications. 934

<http://www.onthecommons.org/> (Last accessed 27 July 2016). 935

A Ainslie ‘When ‘community’ is not enough: managing common property natural resources in rural South

Africa’ (1999) 16/3 Development Southern Africa 375.

230

membership and boundaries are defined. Arguably, without these features of exclusion and

distinction, the concept of property has no meaning in any paradigm.936

In South Africa the current property regime regarding water resources combines the State

property and private property paradigms to the extent that the State remains heavily involved in

water infrastructure and delivery. But its involvement is increasingly directed by a ‘private

sector’ rationale of commercialisation, central to which is the requirement that the costs of

water services are recovered from users, and preferably, profit is generated beyond this (see

Chapter Three).937

Therefore, since the impetus for this hybrid State/private property regime is

commercialisation, it can be understood as functionally comparable to Macpherson’s concept

of industrial revolution private property.938

Consequently, the ensuing discussion of a paradigm

shift involves the current dominant paradigm of individualised ownership and consumption

(albeit it with State involvement), within which the preceding discussion of ‘rights-talk’ is

situated, and a commons or common property paradigm. When directed specifically to water

governance, these paradigms have been articulated as ‘water-as-commodity’, and ‘water-as-

commons’. The former views water as a commodity like any other essential good, responsive to

customers and shareholders and capable of generating profit939

. The commons, in contrast,

emphasises the characteristics of water that make for a difficult fit within the private property

paradigm. Not only is water essential for human life and for the health of all ecosystems; it has

no substitute; it is inextricably linked with the hydrological cycle, which is itself connected with

the particular geography of countries, regions and communities. Furthermore, water has

important cultural and spiritual dimensions, which are also connected to the geographical

location of particular communities (see Chapter One for more detail on this). For each of these

reasons, it is asserted that collective management of water by communities is not only

936

S V Ciriacy-Wantrup & Richard C. Bishop ‘Common Property as a Concept in Natural Resources Policy’

(1975) 15 Natural Resources Journal 713, 715. 937

S Flynn & D Mzikenge Chirwa ‘The Constitutional Implications of Commercialising Water in South Africa’ in

D McDonald and G Ruiters (eds), The Age of Commodity, Water Privatisation in Southern Africa (Earthscan,

2005) 59. 938

C B Macpherson ‘Capitalism and the Changing Concept of Property’, in Kamenka and Neale (eds), Feudalism,

Capitalism and Beyond (Edward Arnold, 1975), 104-124. 939

This commercialised view of water is explicitly stated in The Ministerial Declaration of The Hague on Water

Security in the twenty-first century: ‘Valuing water: to manage water in a way that reflects its economic, social,

environmental and cultural values for all its uses, and to move towards pricing water services to reflect the cost of

their provision’:

<http://www.worldwatercouncil.org/fileadmin/world_water_council/documents/world_water_forum_2/The_Hague

_Declaration.pdf> (Last accessed 27 July 2016).

231

appropriate, but necessary, if sustainable, appropriate resource management is to be achieved.940

Therefore the potential of a common property paradigm in relation to water must be seriously

considered.

5.5 Interrogating the inviolate: Property, commodification, and Human Rights

Together the preceding examination of the commons as a theoretical and practical approach to

natural resource governance, combined with some examples of commons thinking in action (in

relation to water governance in particular) provides the impetus to launch the central claim of

this thesis: Commons approaches to water governance have the potential to create more

sustainable and more equitable access to sufficient water for those currently experiencing water

poverty, than does the present rights-based approach.

While it is my conviction that this is the case, such a claim inevitably challenges certain

assumptions, which are intrinsic to modern democratic, capitalist cosmology. Chief among

these is the right to property (and the connected concept of ‘property’), as well as the

relationship between human rights and property.941

Having sought to fracture the water-as-

commodity paradigm, and to find epistemic space beyond the limits of rights talk, it is

important now to return to the central tenets of that paradigm, and to critique them in light of

the commons.

It is well accepted that there is affinity between rights and property. Grear reminds us that ‘the

very idea of ‘subjective right’ first emerged from the central idea of dominium over property’.942

But anything other than a superficial analysis of the connection between a right of access to

sufficient water, and a right to property, reveals a complex set of interlinkages, conceptually and

practically, internationally, and nationally. We may begin with the difficulty faced in realizing

the right of access to sufficient water in light of the dominant concept of property that is implicit

within the international human rights jurisprudence. Taking the Universal Declaration of

Human Rights as a starting point, there is a great tension created for the realization of the social

agenda within the human rights canon. On the one hand, there are explicit rights to participate

940

K Bakker ‘The ‘Commons’ Versus the ‘Commodity’: Alter-globalization, Anti-privatisation and the Human Right

to Water in the Global South’ (2007) 39/3 Antipode 441. 941

Regarding the primacy of private property, Adelman asserts that there are ‘only two fundamental rights in the

dominant discourse: protection of private property and the right to consume’. See S Adelman ‘Between the Scylla

of Sovereignty and the Charybdis of Human Rights’ (2008) 17 Human Rights & International Legal Discourse 17,

21. 942

A Grear ‘Human rights, property and the search for ‘worlds other’’ (2012) 3/2 Journal of Human Rights and the

Environment 173-195, 181.

232

in the social and scientific advances in one’s society, and from this a line of rights flow, creating

rights to the necessary elements of human well-being and dignity, for example, the right to

healthcare, to housing, to education, and (implicitly) to water (see Chapter Two at 2.2.1). These

form what could be described as a list soft of rights, because there is another, shorter list of

hard rights in the human rights canon: the right to own property, including intellectual

property.943

This ownership right is much stronger than the soft rights, because it links to the question of the

acceptability of different forms of discrimination. Whereas the canon of human rights law has

accepted that discrimination on the grounds of race, gender, and increasingly age, is illegitimate,

economic discrimination is seen as acceptable. Perhaps at the very edges of economic

exclusion, where there is an appeal to justice in the need to respond to catastrophic natural

disasters that plunge individuals into immediate and extraordinary poverty, claims are made

that require a redistribution of economic resources for the well-being of individuals. But in the

normal daily run of poverty, economic discrimination is perfectly acceptable. Indeed, it is a

necessary part of our international free market. Our democratic rights that are seen in the

international (human rights) community as the pinnacle of human social achievement, require

the ability to discriminate between individuals because of economic difference, and to enjoy the

fruits of that discrimination. I might have a right to housing or to health care, but it is seen as an

acceptable realization of that right to enable me to participate in a market and not to be

excluded for reasons of my race, gender or age for instance. But it is perfectly acceptable, in

positivist human rights thinking, for an individual to be told you cannot have this health care or

accommodation because you cannot afford it. This is due to a number of things we have

forgotten about the conceptualization of property.

First, ‘property’ is not a synonym for ‘things’. Colloquially, property is about things. Property is

a label, at one level, for different commodities; ‘property’ relates colloquially to the things that

are valued in particular societies over time. So, land is a recurring ‘thing’ of property. In

agrarian, artisan and industrialized societies, different commodities take on different cultural

and economic importance and value. Today, for example, we speak about ‘the information

age’,944

and different forms of information are commodified and become part of the owned

world. Indeed, with the developments in modern biotechnology, even parts of human beings,

943

N J Cooper, A Swan, & D Townend ‘A Confluence of New Technology and the Right to Water: Experience

and Potential from South Africa’s Constitution and Commons’ (2014) 16/2 Ethics and Information Technology

119-134. 944

M Castells The Rise of the Network Society: The Information Age: Economy, Society, and Culture, Volume 1

(Wiley & Sons, 2011) 8.

233

animals and plants, have become independent commodities and part of this owned world.945

However, property is not only the ‘thing’. Property is not really the thing at all. Property is a

description of the relationship of people regarding the ‘thing’. When I say that I have property

in something, I am referring to a system of rights regarding my relationship to other people in

relation to that thing. Essentially I say to others, ‘this is mine’. As Beyleveld & Brownsword

have noted, this is a particular sort of claim. I only have to assert the provenance of my claim -

that I purchased or made the thing - for the property to ‘bind the world’; the claim to property

is to a strong, broad and binding right.946

Indeed, upon noticing an object we naturally think ‘to

whom does that belong?’ We do not pause, in today’s society, to ask whether a thing is owned

because we see it as part of the realm of commodities. We do not pause to think about the

nature of the property that is or could be claimed. Our only real pause is in thinking how far

the net is cast over commodities. Concern may be voiced regarding the commodification of

something hitherto regarded as existing outside the realm of property claims, like clean air, or

DNA perhaps.947

This however, does not mean that we cannot, or should not, also question

how far a property right extends in other respects.

Second, ‘property’ is a changing and changeable notion. Macpherson948

reminds us that the

current paradigm within which we construct the concept of ‘property’ is not the only available

paradigm that we have used or that we could use. The current paradigm of property, derived

from the industrial revolution, revolves largely around private property. Fundamental to the way

in which property is conceptualized within this paradigm are three attributes: First, property is

easily transferable between individuals; second, property ownership is detached from social

duties and is seen as part of a citizen’s rights; third, property rights are enforced by the

machinery of the State, as part of the rule of law.949

We can develop a complex layering of

rights-holdings over particular items of property (usually, the complexity is proportional to the

perceived economic value of the commodity), but these are essentially created through the

exchanged parts of the single exclusive right to the property. However, this is not the only way

945

Ibid. 946

D Beyleveld & R Brownsword Human Dignity in Bioethics and Biolaw (Oxford University Press, 2001) 171-

194.

947

Although locating such things as being outside or beyond the realm of commodification reflects the Roman law

concept of res publicae, as well as African customary principles prohibiting private ownership of land and water, it

may also be a relatively new phenomenon; for instance invoking Keynesian notions of social goods, encompassing

perhaps education, health care and elemental resources like water. See A L Mark Economics for the Common

Good: Two Centuries of Social Economic Thought in the Humanistic Tradition, (Routledge, 1999) 16. 948

C B Macpherson ‘Capitalism and the Changing Concept of Property’ in Kamenka & Neale (eds) Feudalism,

Capitalism and Beyond (Edward Arnold, 1975) 104-124.

949

Ibid 112.

234

in which we have held property. Macpherson illustrates the existence, and the potential for

existence, of alternative property paradigms, by considering the feudal system of property that

preceded private, industrial revolution property. In the feudal system, property rights were

much more attached to the individual and the individual’s social duties. Property rights were

not citizenship rights, but were bestowed by the monarch and within the social hierarchy.950

Because of this framework, property was not as easily transferable. Perhaps most significantly,

property was not as exclusive. Within this system, and for social welfare purposes, common

ownership (i.e. community rather than exclusively individual ownership) was important.

Common land became a way of ensuring social security for some members of the community;

collective access to the benefits of property was as important within the system as private or

exclusive enjoyment.

Doubtless there are some similarities between this description and the fundamental facets of

commons thinking, as discussed above. But this is not to advocate feudal society over modern

industrial society. Macpherson simply reminds us that the way that we conceptualize property

today is not necessarily the only way to do so. This resonates with Reich’s idea of ‘new

property’, which affirms the paradigmatic nature of property: the changeable nature of property

in response to different socio-economic conditions. We moved from feudal to private property

due to the changing needs of industrialization and market capitalism. Over a shorter span of

time, and within one jurisdiction, a similarly symbiotic relationship between the needs of the

economy and the scope and content of the law (on access to water) has been traced (in Chapter

Three). The question today might be “do the new socio-economic needs of our society require

a change in the conceptualization of property?” However, in seeking a more interconnected

and less anthropocentric perspective, such a question must also ask how property might be

reconceptualised in order to respond to the ecological imperatives facing us all. This relates to

the third observation about ‘property’.

Third, ‘property’ is a moral issue. Morality is about the appropriateness of different actions of

individuals towards other individuals.951

It is about being able to make a convincing justification

for making particular choices that influence other people. Modern societies tend perhaps, to

limit the scope of morality, claiming that it relates to particular sorts of choices rather than

others, for example, sexual morality rather than morality in international commodities trading

or hedge fund management. However, morality is simply about justifying human choices and

950

Ibid. 951

Collins Dictionary definition: <http://www.collinsdictionary.com/dictionary/english/morality> (Last accessed 27

July 2016).

235

actions. Property is the relationship between individual human beings, about things. It is about

the claims that individuals make to bind each other about things. This makes ‘property’ a moral

issue, because the act of claiming the particular relationship to things against other individuals is

a human action and therefore subject to morality.

When I say, ‘this is mine’, I am making an appeal to a particular sort of relationship to that

property that I intend all other people to be bound by. I have to be able to justify that claim in

terms of its morality. Generally, the underlying social response is to assume that ownership and

property claims are necessarily moral, but this is questionable. When my property claims have

implications on others’ well-being, then the requirement to be able to make the moral argument

for that claim-making is imperative. If I fill my swimming pool, or water my garden952

a few

kilometres away from my neighbour, who cannot afford to buy credit for the prepayment meter

in order to access water for her family to wash and cook in, I have to be able to justify denying

her some of my water ‘because it is mine’. Indeed, ‘because it is mine’, or ‘because I bought it’,

or, implicitly, ‘because I deserve it and you do not’ are hard moral claims to justify in the face

of my neighbour’s need. Indeed, the requirement to question the morality of claims to property

is inherent in all acts of property-claiming. In this way, maintaining a simple private, industrial

revolution property claim over access to water, or the means of supplying water, is a moral

issue, requiring robust justifications and open to legitimate critique and creative alternatives.953

Water scarcity affects over 20% of the world’s population (those without access to sufficient

potable water to meet daily needs) and the problem has increased in many regions, while a

private property paradigm for water continues to be promulgated954

.

The demand that property-claiming be subject to rigorous moral justification is not to place an

unequal, or intolerable burden upon particular governments, municipalities, companies, or

individuals. Because the concept of property is one that binds the world, it is universal and

systemic. The requirement to make property a moral issue challenges all property ownership

since morality is not selective. This leads to the question of how best to conceive of property in

a morally sensitized way. It also raises the question of whether human rights might have a role

952

According to this article half of the water used for domestic purposes in Gauteng is used to fill swimming pools

and to water gardens. Mrs Mazibuko and her co-applicants also reside in Gauteng: ‘Records tumble as drought

goes on’ The Mail & Guardian 20-26 November 2015, 11.

953

This is not to ignore the measures in place in South Africa to ameliorate water poverty, including the Free Basic

Water policy of 25 litres per person per day. However, as several of the interviews with water poor people testify,

this policy is not able to ensure that everyone has access to sufficient water (even when sufficiency is limited to

volume as in this illustration). 954

K Bakker ‘The ‘Commons’ Versus the ‘Commodity’: Alter-globalization, Anti-privatisation and the Human Right

to Water in the Global South’ (2007) 39/3 Antipode 430.

236

in such a reconceptualization of property. While the liberal vision of human rights - as

individually focused, and increasingly technical and positivistic – is compatible with an industrial

revolution private property paradigm, there is another vision of human rights, that resists legal

domestication, and so retains some potential to act as a site and catalyst of critique, which can

still disrupt positive human rights law itself. Grear describes this potential as:

‘energy which reaches […] beyond the ‘now’ of law towards the ‘not yet’ of justice as law’s

endlessly elusive horizon’.955

Viewed in this way there is no contradiction in asserting the inadequacies of rights talk, and

specifically of the right of access to sufficient water, while heeding the clarion call to affirm a

right to water as a prophetic, emancipatory (and unambiguously moral) claim.

In response to such a call, commons ideas do not deny individual rights. Rather, it is a shift in

emphasis from individual rights (conferred in isolation from realities of scarcity and imperatives

of sustainability, and susceptible to legal domestication), towards greater contextualisation and

contestation of those rights claims.956

The themes of interconnectivity and interdependence

within IWRM are echoed here. But unlike IWRM a commons strategy avoids emphasising

individual (legal) water rights, in favour of communal needs (this does not detract from the

continuing articulation of a right to water for everyone, as a moral claim, framed variously in

individual and communal terms).

In the South African context, there is potential to give effect to a reconceived notion of property

in relation to water. Not only does the National Water Act apply the doctrine of public

trusteeship to water, in a way that eschews private or State-ownership (rather the property title is

vested in the State as trustee, with the nation - all people - as beneficiary957

), but, as van der Walt

argues, such a deliberately novel designation acknowledges that ‘property has a public, civic or

“proprietary” aspect to it that transcends individual economic interests and that involves

interdependency and common obligations’.958

(See discussion at Chapter Three at 3.3.2).

Furthermore, the right to property in Section 25 of the Constitution makes specific provision

for ‘legislative and other measures to achieve land, water and related reform, in order to redress

955


Environment 173-195, 178. 956

M B Dembour ‘What Are Human Rights? Four Schools of Thought’ (2010) 32/1 Human Rights Quarterly, 6-9. 957

G J Pienaar & E van der Schyff ‘The Reform of Water Rights in South Africa’ Law Environment and

Development Journal (2007) 3/2, 179-194, 184. 958

AJ van der Walt ‘The Public Aspect of Private Property’ (2004) 19/3 South African Public Law 676, 707.

237

the results of past racial discrimination’,959

paving the way, in theory at least, for a fundamental

reimagination of water governance in South Africa.

Such a shift in focus may offer a more effective model of implementing sustainable water

allocation, while avoiding the pitfalls of rights-talk inherent in the right to water. A commons

strategy would encourage decisions on water allocation to be made at the lowest appropriate

level, involving all users to input into collective decisions that transcend a compromise of

competing interests, in favour of corporately ‘owned’ allocation decisions that best serve each

community. If innovatively applied to water allocation, a commons strategy may be able to

transcend the limitations of the right of access to sufficient water, restating sufficient water as a

moral claim, made corporately by and for people within their community.

5.6 Challenges and solutions

Clearly the foregoing critique of the failures of the right to water and the attempts at reimagining

water governance raises many challenges. Inevitably, questions are raised as to the best shape

and scope of a right to water (as well as justifying why such a right should even exist), and

around the Court’s legitimate interpretation of the right to water, requiring that theories of

constitutionalism, separation of powers, and judicial restraint must be carefully re-examined.

Zooming out to the international level, questions must be asked about the contingent

articulation of liberal human rights, and the ways in which they are expressed as being

congruent with a globalised capitalist economy. Furthermore, introducing and identifying

commons thinking in action, regarding water governance at the local level, uncovers layers of

‘law’ or law-like interactions that must also be analysed and theorised; as social norms are

agreed (sometimes rediscovered), monitored and enforced within structures containing vastly

different degrees of formality. The purpose of asking each of these questions (as well as the

many others that this thesis has generated) is to answer how law can best help achieve the goal

of access to sufficient water for everyone. This section simply acknowledges that the scale of

that goal is considerable, and points to three practical ‘next steps’ towards solutions.

First, regarding the constitutional right of access to sufficient water, greater scrutiny should be

afforded to what resources are available in fulfilment of the right. While the apportioning of

resources is undoubtedly a political question, a new legal requirement to publish what resources

have been made available in pursuit of which socio-economic rights, along with explanations,

could encourage their quicker, progressive realisation. Regarding national water policy,

959

Section 25 (8) Constitution of the Republic of South Africa 1996. (Emphasis added).

238

commitment to full cost recovery for water services should be removed. While this would

undoubtedly impact upon the State’s available resources, it would also, crucially, allow the right

to water to be pursued from outside a water-as-commodity paradigm, which is essential if

indigent communities are to experience significant improvements in their access to water. To

this end the public trusteeship of water should be re-emphasised, including within the operation

and priorities of State-owned water companies. The relatively minor involvement of foreign

direct investment in the South African water sector means that such a shift could be undertaken

without the degree of acrimony witnessed in parts of South America.

Second, judicial interpretation of the right of access to sufficient water should adopt a more

pragmatic and flexible approach, resisting the urge towards automatic restraint, which risks

manifesting itself in a managerialism that masquerades as deference. The Constitutional Court’s

jurisprudence of reasonableness should not be used to avoid adopting tangible minimum

standards (core obligations) for socio-economic rights, when the substance of the particular

right makes it ‘reasonable’ to do so. Regarding the right of access to sufficient water, such a

minimum core should be decided, and then regularly reviewed in line with the continued

obligation of progressive fulfilment. Moreover, the quantum decided for such a minimum core

must accurately reflect both the needs of the (human) water users, and the capacities of their

environment. This would require moving towards a more contextualised definition of sufficient

water, which will almost certainly involve the adoption of maximum quotas for water use

(whether these are imposed by prohibitive law or by prohibitive taxation is another matter).

Third, serious research (echoing that conducted by Ostrom960

and others in various sectors, but

particular to South Africa and to water governance) should be undertaken to identify where the

optimum balance lies between community self-organisation and collaboration in partnership

with government or NGOs. As the experience of the WUAs in Malawi suggests, achieving this

balance is essential in order to effectively deliver sustainable and equitable water services over

the long term, in communities where access to water is problematic. Such research must be

creative enough to consider atypical modes of water governance, while being sensitive to the

potential and actual weaknesses within commons thinking (and action).

Doubtless each of these ‘solutions’ would generate their own challenges, not least regarding the

need for new law and legal regulation, new interpretative approaches, and new ways to affirm,

960

See for example E Ostrom Governing the Commons: The Evolution of Institutions for Collective Action

(Cambridge University Press, 1990); E Ostrom et al ‘Revisiting the Commons: Local Lessons, Global Challenges’

(1999) 284 Science 278.

239

encourage and support existing forms of vernacular law, with the potential to positively

contribute to the overarching goal of access to water for everyone.


Most ambitiously within this thesis, this chapter has sought to connect the legal shortcomings of

the constitutional right of access to sufficient water to the reality of living with insufficient water

for many in the country. A further connection has then been made between the ways in which

water poor people experience the dominant mode of water governance, and the potential

(sometimes latent, sometimes manifest) to rethink water governance in more enfranchising,

more equitable and more sustainable ways. Crucial to this post-water-as-commodity imaginary

endeavour is a fresh appraisal of the role of community organisation and commons thinking,

based on empirical observation and theoretical analysis. But in order even to begin such a

creative reappraisal, space must be found where ideas and examples that fall outside the

dominant paradigm, are allowed room to flourish or to wilt, without presupposition. Doubtless

the purity of such a cerebral space is not possible to attain in reality. Our conditioning,

prejudices and preferences cannot be entirely kept away from the subject of our analysis. But

even being mindful of this can help alert us to the importance of acknowledging our

(un)conscious biases, and of compensating for them where we can. To this end, Peter Rollins’

notion of ‘suspended spaces’ (or ‘uncolonised spaces’) is a useful conceptual schema, and helps

justify the decidedly optimistic appraisal of the potential contained within some people’s

stories.961

Similarly some of the post-modern insights into the interrogatory importance of the ‘other’, as

well as on the necessary suspicion of epistemological closures, have guided the approach of this

chapter, including its conclusions. Sensitive to the eschewal of meta-narratives implicit in the

postmodern turn, and reflecting on the lived experience of commoning discussed above, I do

not wish to suggest that commons modes of water governance should necessarily be looked to

as a replacement for more familiar ‘top down’ models (typified by State/Corporate water

service) in all circumstances. Neither do I argue that framing questions of water use as issues to

be addressed communally, necessarily removes the need to conceive of access to water also as a

personal, individual issue, to which a ‘right of access to sufficient water’ may provide an

appropriate legal concept and justiciable tool. To deny a place altogether for individuals’ claims

of a right to water would be to ignore the progress that has been made in improving people’s

961

P Rollins How (Not) to Speak of God (SPCK, 2006) 97.

240

access to water globally. As part of this endeavour, the articulation and (at least partial)

recognition of a right to water continues to focus rhetoric and galvanise action (see Chapter

Two).

Denial of an individual right to water in order to emphasise the interconnected, shared,

contextualised and communal aspects of water use, would also betray an ideological

commitment to the commons as the best approach to water governance, which simply echoes

the ‘free market’ claim that it is commercialisation that is the only effective mode of resource

allocation. Therefore I am not proposing a revolutionary replacement of all current water

services with commons modes of water governance. While I maintain that commons thinking

promotes a contingent and grounded vision of water use, which is essential for sustainable,

equitable water governance, this assertion does not reject the possibility that other modes of

governance can also (perhaps even more effectively) contribute to realising the same goal.962

Indeed, commons thinking must not be allowed to follow the totalising route that modernism

encourages, and which has helped to deeply embed the commercialisation of natural resources

as the dominant paradigm. As Usher reminds us, one consequence of accepting that knowledge

is relative to discourses, and is therefore always partial and perspectival, is that claims to

atheoretical and value-neutral ‘truth’, even derived from observation, are fantasy.963

Moreover,

such fantasies are pernicious because they prompt the enclosure and restriction of spaces that

incubate and encourage perpetual contestation. Instead, the existence of such spaces for

contestation becomes even more important when faced with ‘the almost unthinkably complex,

inter-related and interactive, global system’.964

Here, epistemic spaces can signify and remind us of the ‘ungraspable’965

nature of this system,

and therefore also, the futility of any claims to mastery of it. Epistemic spaces are important

then, not just to encourage contestation, but also humility. Not humility as acquiescence, but as

the catalyst for active and on-going contestation: reminding us that since a perfect system is

ungraspable, the task must continue. But while a single, certain solution will always remain

illusive, we must remember that the problem can be clearly described: many people continue

962

For a more optimistic appraisal of the role of privatisation/commercialisation of water services, see for example J

Budds & G McGranahan ‘Are the debates on water privatization missing the point? Experiences from Africa, Asia

and Latin America.’ (2003) 15/2 Environment and Urbanization 87-114; L Mehta ‘Unpacking rights and wrongs:

do human rights make a difference? The case of water rights in India and South Africa’ (2005) Working Paper

260 Institute of Development Studies. 963



(Falmer Press, 1997) 31. 964

Ibid 30. 965

Ibid.

241

to live without access to sufficient water, while ‘holding’ a right to water that was supposed to

eradicate this unacceptable status quo. Therefore, where commons approaches to water

resources can be used to achieve improvements in people’s access to water, they should be

pursued with gusto.

Learning from some of the practical examples of commoning, considered above, the

application of commons thinking to the water resources of any given community will require

some degree of organisation and administration. While stories from Blantyre and Burlington

provide examples with more or less formal governance structures, both examples also illustrate

multilevel governance in action. In both locations, across two different jurisdictions,

constitutional, national and municipal water law and policy remain unaffected by the operation

of commons approaches to water allocation at the grass roots. Obligations imposed by

legislation are unchanged by commons thinking, and, in South Africa, the right of access to

sufficient water remains operative (albeit within the various constraints of qualification and

interpretation) for each individual in the community. Therefore, commons approaches can be

promoted without the need to advocate for the outright replacement of the current system of

water governance.

It is to be expected that such interaction between municipal and community governance will be

reflected, at least to some extent, in municipal governance frameworks. In South Africa, this is

one of the purposes of creating CMAs (discussed above). In Blantyre, Malawi, municipal

government regularly communicates with the WUAs, briefing them of changes to water

pumping and purification capacities, and helping them to ensure dependable water provision.

On another practical note, several of the commons examples discussed above actually involved

collaboration with the State (local or municipal government) to greater or lesser degrees. These

examples are interesting first because they remind us that in pursuing the goal of access to

sufficient water for all, the resources of the State, though limited, are important nonetheless.

Second, though these examples reflect commons thinking, they are not entirely commons

projects, because of their involvement with, and reliance upon State resources. Not only should

this caution against hubristic claims about the mastery of the commons, it also requires

acknowledgement of a third mode of water governance, distinct from State allocation (within a

water-as-commodity paradigm), and water-as-commons, which can be expressed as a hybrid of

community and State action.

242

It may even be more accurate (despite my aesthetic sensibilities) to add a fourth ‘C’ to the title

of this thesis, and to acknowledge the role of ‘collaboration’, or the collaborative efforts of

communities in partnership with local government towards more effective water governance.

Indeed, such collaboration was what Ostrom has referred to as ‘private-like’ and ‘public-like’

institutions that defy classification in a sterile dichotomy. Whether such hybrids represent a

water governance paradigm that is distinct from both water-as-commodity, and water–as-

commons, is not clear. But mindful not to claim the mastery of any one paradigm, perhaps

such ambiguity is fitting.

243

6 Conclusion: Achieving access

to sufficient water for everyone,

forever

‘We will talk quite directly about it, because water is quite a fascinating thing… My own feeling is

that there must be entitlements- the amount of water that any family however rich can use. My

problem is that unless you have a maximum, you’re not going to solve the problem… You can’t

say as long as you’re prepared to pay more and more and more, you can have as much water as

you like. Mad.’

Author’s interview with Justice Zak Yacoob966

6.1 Introduction

Throughout this thesis the central problematic has remained ‘how to achieve access to sufficient

water for everyone in South Africa’. This has been engaged with from the perspectives of

international law (and more broadly, water governance at the international level); South African

Constitutional law (and more specifically, socio-economic rights jurisprudence); and community

organisation (combining commons approaches to water governance in theory and practice).

That this problematic is timely and important is only too evident from the fact that so many

South Africans still live without access to sufficient water, and that water resources are under

increasing pressure from a fusion of adverse climate change, inadequate governance, and

increasing demand. The focus of this study has been on legal responses to the challenge of

achieving access to sufficient water, with much attention given to how water, and access to water,

are regulated using legal tools and legal concepts, including legislation, case decisions, and the

language of (legal) rights. But throughout this legal enquiry effort has been made to include the

966


244

experiences of people for whom access to sufficient water is problematic, and whose lives are

adversely affected by insufficient water and its myriad consequences. People in such situations

are described as ‘water poor’. The voices of some of these water poor people, and the stories

they tell, have been afforded a privileged position within the thesis, in deliberate subordination

of the model of much mainstream scholarship, which (consciously or otherwise) excludes the

experiences of people on the ‘wrong side’ of the economic/legal/political/ consensus.967

In brief, the main conclusions of this thesis are threefold: First that the tentative consensus

around a human right to water in international law is useful in directing attention and catalysing

action towards improving people’s access to water. The right to water, as a trope, raises

awareness of the profound global challenge of delivering sustainable access to sufficient water

for the 650 million people worldwide, who currently live without it, including the 900 children a

day who die from diarrhoeal disease caused by unsafe water.968

Moreover, it informs national

law regarding the content of a domestic right to water, including concomitant State obligations,

and it helps to direct development priorities including the Sustainable Development Goals.969

But it falls short of being an effective tool for ensuring access to sufficient water for everyone.

This is necessarily so, in the absence of an effective international regulatory framework for

violations and compliance regarding socio-economic rights, and the continued primacy of states

as the main context within which individuals’ rights are conferred and experienced.

Second, the right of access to sufficient water in the South African Constitution is not capable of

ensuring access to sufficient water for everyone in the country (this is referred to as the limits, or

limitations of rights talk). As it is currently configured and interpreted, the right is

individualistic, compatible with private property rights, and interpreted in light of a priori

assumptions about the commerciality of water services. Furthermore, it is subject to progressive

realisation within the available resources of the State. Together, these conditions and attributes

position the right to water (and water governance more generally in South Africa) within a

water-as-commodity paradigm. One consequence of this regarding the task of achieving

sufficient water for everyone, is that in creating such a conditional legal right, the underlying

moral claim to sufficient water is diluted, and the right of access to sufficient water is

transformed into a technical legal problem970

This allows for experiences of access to insufficient

967

R Banakar & M Travers (eds) Theory and method in socio-legal research. (Hart, 2005) 12. 968

See: <http://www.wateraid.org/what-we-do/the-crisis/statistics> (Last accessed 27 July 2016). 969

For an example of how the international human right to water has focused pressure for the inclusion of a goal of

universal water access within the recently-agreed Sustainable Development Goals, see

<http://www.right2water.eu/news/human-right-water-and-sanitation-must-be-sdgs> (Last accessed 27 July 2016). 970


245

water to be deemed legally legitimate, thereby allowing the continuation of water poverty, and

restricting space for political contestation.971

Third, commons approaches to resource allocation (commons thinking in action) are well

placed to step in to the gap left by the limitations of rights talk. Commons thinking promotes a

contingent and grounded vision of water use, which is essential for sustainable, equitable water

governance. Furthermore the emphasis within commons thinking on community priorities can

encourage decisions on water governance to be mediated by communities, and made at the

lowest appropriate level. This has the potential to help achieve access to sufficient water for

everyone, by restating it as a moral claim, and aiding its fulfilment in more sensitised and

appropriate ways. These attributes of commons thinking, applied to water governance,

represent a distinct alternative paradigm: water-as-commons. It is argued that access to

sufficient water for everyone in South Africa could be more closely realised by reconceiving

water governance within a water-as-commons paradigm (albeit manifest in different shapes and

sizes, including being variously combined with State actors and /or NGOs), than by the

continued pursuit of commercialised water services, and an (over)reliance on top-down

approaches to water governance, including a constitutional right of access to water.

By combining the substance of these conclusions with the ways in which they have been

reached, it is asserted that an original and meaningful contribution to the state of the art on

water governance in South Africa has been offered here (with some scope for application

beyond the South African context). These conclusions are considered in more detail below as

the thesis structure is reviewed. The chapter finishes with some reflections on the limitations of

the thesis, and some thoughts on directions for future research.

6.1.1 Structure

Entitled ‘Covenants, Constitution, and Commons’, the thesis has sought to engage with the

question of how to achieve access to sufficient water for everyone in South Africa from the

perspective of law (broadly defined to include ‘soft law’972

, governance, and ‘vernacular law’,

alongside more traditional ‘hard law’973

), by adopting a three-level approach, moving from

consideration of how access to sufficient water may be pursued through international law, and

commons?’ (Syracuse Conference, Cape Town, February 2010) 12.

971



G C Shaffer & M A Pollack ‘Hard vs Soft Law: Alternatives, Complements and Antagonists in International

Governance’ (2010) Minnesota Law Review 706-799, 712-13. 973

Ibid.

246

at the international level; to national (including constitutional) law and policy in South Africa;

and finally to the level of community organisation and the vernacular law of the commons.

The pertinence of each level of enquiry to the overarching problematic of the thesis is now

reviewed, beginning with water governance at the international level. This is the level of the

Covenants (ICESCR and ICCPR), but also of other relevant international (including regional)

treaties, UN General Assembly resolutions, and internationally agreed development goals,

amongst other things. Central to my enquiry at this level was the question: 'How is the goal of

achieving access to sufficient water understood, facilitated, and implemented at the level of

international law?’974

In order to answer this, Chapter Two focused on identifying the nature and scope of an

internationally acknowledged human right to water, including outlining the law and legal

instruments relevant to water governance at the international level. The chapter examined and

critiqued the structural and practical limitations of an international human right to water, and to

a rights-based approach to water governance, before introducing an alternative/complementary

conception of water as a development goal. Connections between social, economic and cultural

rights, civil and political rights, and environmental exigencies began to be made in this chapter,

in order to frame the question of sustainable access to sufficient water within the challenges and

limitations not just of economic resources, but also of social and cultural needs, and of

emerging ecological capacities. The conclusions reached in Chapter Two, around the

conceptual and material limitations on the ability of an international human right to water to

address the challenge of access to sufficient water for everyone, propelled the thesis towards the

next level of enquiry: national water governance in South Africa.

As the statistics above attest to, access to sufficient water remains a serious challenge for people

in numerous countries across the world. Therefore, any one of these countries could have been

chosen as the focus of enquiry on national, or State-bound approaches to water governance.

But, as detailed in Chapter One, South Africa was chosen for a number of reasons, including

most notably the novel inclusion of a right of access to sufficient water within the country’s new

Constitution. This, combined with the significant and persistent problems of water access facing

many citizens, and my own familiarity with, and affection for, the country, meant that South

974

For the purpose of this question ‘international law’ is understood to encompass not only the authorities as set

out in the Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945)

15 UNCIO 355, Article 38 (1) (a)-(c)), but also the relevant United Nations General Assembly Resolutions, despite

not being binding on member states, and other ‘soft law’, or non-legally binding instruments including for instance

the 1992 Rio Declaration on Environment and Development. See A Boyle ‘Soft law in international law-making’

in M Evans (ed) International Law (4th

ed, Oxford, 2014) 118, 119-120.

247

Africa was an ideal context to continue to interrogate the role and potential of law in helping to

achieve universal access to sufficient water.

Three research questions were particularly relevant to analysing water governance in South

Africa: How is the right of access to sufficient water understood, facilitated, and implemented

in South Africa? What impact does relevant international law have on South Africa’s regulatory

framework for access to water? To what extent can the current international and domestic

regulatory frameworks achieve access to sufficient water for everyone in South Africa? These

questions have been addressed across Chapters Three and Four.

Chapter Three begins with an exploration of the country’s unique social, legal, and political

history, in order to use this as a lens through which past and present water governance can be

critiqued. This has required a detailed study of the operation of the 1996 Constitution, as well

as of legislation and policy pertaining to water governance. Deliberately descriptive in parts, in

order to lay the foundation for the ensuing evaluation of the effectiveness of the right of access

to water, this chapter also offers a critical reading of the interaction between law and the

economy, and the determining dynamics of capitalist imperatives upon governance, including

water governance. Study of the Constitution also reveals the formal connection between

international law and domestic law. Some of the normative consequences of water governance

at the international level, on South African jurisprudence are reflected on in Chapter Four. So

the principal purpose of Chapter Three has been to identify the law and legal instruments that

relate to, and impact upon, the right of access to sufficient water in South Africa, as well as

beginning to consider the relevance of international law for South African water governance.

Chapter Four places the right of access to sufficient water within the general context of those

socio-economic rights within the Bill of Rights, as created by the 1996 Constitution. It is argued

that in order to understand the scope, application, and transformative potential of the right of

access to sufficient water, consideration must be given to the ways in which all socio-economic

rights have been interpreted and adjudicated upon by the courts, and most notably by the

Constitutional Court. Furthermore, it is asserted that the interpretation of socio-economic rights

depends, in part at least on the perceived relationship between the judiciary and the other

branches of the State. Consequently, Chapter Four analyses seminal decisions of the

Constitutional Court including those specifically regarding socio-economic rights, in order to

identify a more-or-less coherent jurisprudence, and in so doing, to address the extent to which

248

the constitutional right to water (informed by the international human right to water) helps

achieve access to sufficient water for everyone in South Africa.

Chapter Four concludes that there are limitations to the Constitutional Court’s ability to pursue

significant social transformation through adjudication on socio-economic rights, and that many

of these limitations can be considered legitimate, by recourse to entrenched constitutional

values (a position labelled ‘judicial restraint’, which taken to its extreme, becomes ‘judicial

managerialism’975

). But an alternative interpretation of the Court’s interaction with socio-

economic rights is also postulated, emphasising the developmental importance of a dynamic,

evolutionary understanding of the Court’s role in relation to these rights. Rather than asking

what is the legitimate role of the Constitutional Court? (a question that expects a static answer),

instead the question ‘what is currently the legitimate role of the Constitutional Court?’ is asked:

an idea expressed as ‘liminal constitutionalism’. The usefulness of this concept is considered.

But it is ultimately concluded that affecting significant transformation through adjudication of

the right of access to sufficient water (as it is currently configured) has reached its limits.

Reaching the limits of ‘rights talk’ (particularly regarding achieving access to sufficient water)

once again propels the thesis, in Chapter Five, to the next regulatory level upon which the task

of achieving access to sufficient water for everyone is considered: the commons.

Here the central research question has been ‘what role can commons/community organisations

play in creating effective water governance976

to help achieve access to water for everyone?’ In

order to address this, Chapter Five begins with a detailed analysis of the stories of several

people for whom access to insufficient water is a regular problem. Measured against the most

authoritative international standard for sufficient water, these people’s stories reveal the various

ways in which water access can be so problematic, as well as the consequences of lives lived

without sufficient water. From this narrative inquiry flows an attempt to reconceive water

governance from outside the structural and conceptual closures of the dominant paradigm

(identified above as water-as-commodity) and consequently, to explore the potential for new/old

975

This term was originally coined by the author in the following publication: N Cooper & D French ‘The Right to

Water in South Africa: Constitutional Managerialism and a Call for Pluralism’ in E Blanco & J Razzaque (eds)

Natural Resources and the Green Economy: Redefining the Challenges for People, States and Corporations

(Martinus Nijhoff, 2012) 111. 976

Here the term ‘governance’ is deliberately used in contrast to the traditional, hierarchical notion of regulation

referred to in the previous two sub-questions. Instead governance, which emphasises flexible, informal and multi-

level regulation, is proffered as potentially a more appropriate regulatory strategy, more complementary to

commons thinking. See above at 5.4.1. Also see variously R Bellamy & A Palumbo (eds) From government to

governance (Ashgate, 2010), P Jon “Introduction: Understanding governance” in P Jon (ed) Debating Governance:

Authority, Steering and Democracy (OUP, 2000). These definitions and themes have been considered further in

Chapter Five.

249

modes of governance that have the capacity to be more sustainable, more equitable, and better

suited to the communities hit hardest by water poverty.

Blending contemporary perspectives on vernacular law and multi-level governance with

postmodern theories on stories and subjectivity, and empirical observation and reflection, a

fresh contribution is made to the debate on how best to achieve access to sufficient water for

everyone in South Africa.

6.1.2 Reconnecting the local, the national, and the global

The three-level design that this thesis follows has been useful in order to provide structure, and

to direct focus towards international, national, and community approaches to water governance,

in turn. But it must be noted that these levels of governance do not occupy cleanly separated

strata. Rather, each level interacts with, and responds to, the others. Chapters One and Two

show how the impetus to adopt an international human right to water, was driven, at least in

part, by national governmental failures, and by grass-roots activism. Chapters Three and Four

evidence the influence of relevant international law on national water governance in South

Africa, and as argued in Chapters Four and Five, recent developments of commons approaches

to water governance in South Africa and Malawi have been driven by the limitations of top-

down national law and policy.

While much attention has been given to commons thinking in action, within local communities,

it is important to remember that the commons is also a global movement. There are many

historical and contemporary examples of geographically bound commons approaches, applied

across the world: to water; agriculture; libraries; and grocery shopping, amongst many others.

But also, empowered in large part by the internet, global commons have developed

exponentially, and can be seen in relation to open access scholarship; open source software;

alternative currencies; music; and data sharing.977

Indeed, the prevalence of commons

approaches, alongside their resilience to economic shocks (due to the fact that many commons

modes are more or less separate from State/market logic and control) has even led at least one

country to formally consider transitioning towards greater use of commons approaches.978

Similarly, South Africa’s launch of Catchment Management Agencies (CMAs) to improve

locally-specific water governance,979

is an example of adapting governance structures in order to

977

See for example Open Knowledge International <https://okfn.org/> (Last accessed 27 July 2016). 978

In 2014 the Ecuadorian Government commissioned a strategic research initiative by Free Libre Open

Knowledge (FLOK). Available at: <http://en.wiki.floksociety.org/w/Research_Plan> (Last accessed 27 July 2016). 979

<http://www.inkomaticma.co.za> (last accessed 27 July 2016).

250

attempt to incorporate grassroots organisation and knowledge: ‘empowering stakeholders to

engage in consensual and adaptive decision making across the […] catchment.’980

6.2 A note on originality

Reviewing the prevalence of empirical research in legal studies, Epstein and King have noted

that although much legal scholarship makes use of empirical information – that is quantitative

data or qualitative information – far too little attention has been paid ‘to the key lessons of the

revolution in empirical analysis that has been taking place over the last century in other

disciplines’.981

In particular there remains a conspicuous absence of work that focuses on the

methodology of empirical analysis in law. The result of this, they claim, is that ‘readers learn

considerably less accurate information about the empirical world than the studies’ stridently

stated’.982

Sensitive to this general weakness in legal research, and influenced by social scientific

skepticism around epistemological mastery, I have deliberately sought to adopt a

methodological design that is at once explicit, and is also able to combine legal scholarship with

narrative inquiry in order to tell a story that is grounded in the empirical world. To the degree

to which I have succeeded in this endeavour, I believe that this makes a positive contribution to

genuinely socio-legal research.983

Moreover, the conceptual lens through which the jurisprudence of the Constitutional Court has

been analyzed in Chapter Four, represents an original attempt to break open the binary model

that frames ‘judicial managerialism’ and ‘transformative constitutionalism’ as competing

interpretations of the ‘correct’ or most appropriate approach of the Court. Instead of such a

binary tension, the concept of ‘liminal constitutionalism’ has sought to rephrase questions

around the optimum approach of the Constitutional Court, as contingent, temporary and fluid:

What is optimum at one point in time will not necessarily be so at another time. This

encourages continual contestation of the Court’s role, which has the potential to lead to

consideration of modes of water governance outside the current configuration of individual

rights claims, whenever and wherever appropriate (see 4.6.3).

980

See Inkomati CMA ‘Mission Statement’: <http://www.inkomaticma.co.za> (last accessed 27 June 2016). 981

L Epstein & G King ‘Empirical Research and the Goals of Legal Scholarship: A Response’ (2002) 69 University

of Chicago Law Review 1-209, 1. 982

Ibid 2. 983

R Banakar & M Travers (eds) Theory and Method in Socio-Legal Research (Hart Publishing, 2005) xi.

251

Finally, analysis of the relationship between property and the right of access to sufficient water,

pertinently contributes to the literature on human rights and property rights. Grear has

described water as ‘the ultimate frontier issue between rights and property paradigms’984

and

although this nexus has already received some critical theoretical attention, the emphasis on the

experience of water-poor people in this thesis adds practical dimensions to the theoretical

debate, applying the theory within the South African legal system, and illustrating people’s ‘felt

injustice’985

by giving voice to their stories, and by learning from their responses. In so doing, this

thesis makes a timely contribution to scholarship around the evolutionary direction of socio-

economic rights in South Africa, and across the global South, (where the inclusion of socio-

economic rights within national Constitutions is becoming more popular986

) and on the potential

for commons thinking to be used in pursuit of better (water) governance.

6.3 Pre/Post modern hints towards hydro-socio-eco responsibility

The Commons has been described as ‘a useful new/old framework and vocabulary for building

a new societal vision.’987

Unsurprisingly then, commons thinking finds echoes of itself in ancient

traditions, as well as in contemporary culture. Similarly the 1996 Constitution of the Republic

of South Africa attempts to integrate old wisdom with the contemporary language of rights, and

a fresh commitment to dignity (while clearly renouncing the legacies of discrimination and

apartheid). One such ancient tradition, which is particularly relevant to any discussion of rights

and resource governance in South Africa, is Ubuntu.

6.3.1 Ubuntu, rights and commons

In the case of S v Makwanyane (considered in Chapter Four in relation to judicial deference),

in obiter, Langa J called for:

‘a change in mental attitude from vengeance to an appreciation of the need for understanding,

from retaliation to reparation and from victimisation to Ubuntu.’988

984


Environment 173-195, 191 985

Ibid at 178. 986

For a recent example of such inclusion see the 1993 Constitution of Zimbabwe. Available at: <

https://www.constituteproject.org/constitution/Zimbabwe_2013.pdf> (Last accessed 27 July 2016). 987



(Edward Elgar, 2015) 251, 252. 988

S v Makwanyane 1995 (3) SA 391 (CC). Paragraph 223. Note this was originally quoted from Chaskalson P’s

judgment in National Unity and Reconcilliation.

252

Although referred to in Makwanyane in the context of capital punishment, Ubuntu can also

claim much broader significance, particularly to the conceptualisation of people’s rights and

responsibilities. Ubuntu has been described as a world-view prevalent in African societies,

which predates colonial involvement on the continent, and as a metaphor for group solidarity in

response to the challenges of survival and of scarce resources.989

It is well summarised by the

phrase ‘Motho ke motho ka batho babang’, ‘a person is only a person because of other

people’.990

As such it implicitly emphasises personhood, humanity, and humaneness.991

Langa J describes it as being relevant to contemporary South African jurisprudence because of

its emphasis on the interdependence of community members, and therefore the importance of

‘communality’:992

It recognises a person's status as a human being, entitled to unconditional respect, dignity, value

and acceptance from the members of the community such person happens to be part of. It also

entails the converse, however. The person has a corresponding duty to give the same respect,

dignity, value and acceptance to each member of that community. More importantly, it regulates

the exercise of rights by the emphasis it lays on sharing and co-responsibility and the mutual

enjoyment of rights by all.’993

Applied more specifically to the focus of this thesis, and to the right of access to sufficient water,

Ubuntu seems to offer an important vantage point from which to review both the constitutional

right to water, and the commons approaches to water governance identified in the previous

chapter. The right to water, in its current configuration is contingent upon available resources,

and subject to progressive, not immediate fulfilment. But Ubuntu raises a further important

limitation that any one person’s enjoyment of their right must not be at the expense of others’

mutual enjoyment.

In light of this, Justice Yacoob’s comments on imposing maximum quotas for water use (quoted

at the beginning of this chapter) supports this emphasis on mutual responsibility and mutual

enjoyment, and hint at the need for a significant transformation of water governance if truly

sustainable, equitable access to sufficient water for everyone is to be achieved. Ubuntu offers a

rationale by which the right to access water, that any one individual or family has, can be

scrutinised (and if necessary, limited) by the context of the needs and resources within their

989

L Mbigi & J Maree Ubuntu: The Spirit of African Transformation Management (Sigma Press, 1995) 1-7. 990

Ibid. 991 Y Makgoro ‘Ubuntu and the law in South Africa’ (1997) 1/1 Potchefstroom Electronic Law

Journal/Potchefstroomse Elektroniese Regsblad, 2. 992


Ibid.

253

community. To use so much water that your neighbour’s access to water is in jeopardy, would

be to disregard Ubuntu.

Within the context of a community where water poverty exists, such an application of Ubuntu

to water access and the right to water may contribute to the agreement of shared social norms

and vernacular law around which commons approaches to water governance could be

regulated. Indeed, the willingness of residents in Burlington to pool finances in order to

maintain piped water to older people’s homes, implicitly accepts that there is a maximum

quantum of water beyond which one individual’s water use will impede another’s. If those

contributing to elderly neighbours’ water bills, decided instead to use that money to buy more

water for themselves, their neighbour’s access to water would be impinged upon. Whether

there should be a maximum quota for water use in (State) law is a different question. The

Constitutional Court’s rejection of a minimum core approach to socio-economic rights may

suggest that there may also be resistance to imposing maximums. But Yacoob’s comments

certainly reinforce the argument made in Chapter Five, that a claim to (however much) water

must be understood as a moral claim, and not simply as a value-neutral market activity:

‘You can’t say as long as you’re prepared to pay more and more and more, you can have as

much water as you like. Mad.’994

Ubuntu can be used to affirm an individual’s right of access to sufficient water, because Ubuntu

affirms the dignity of all people, and sufficient water is necessary for dignified existence. While

simultaneously, Ubuntu reminds us that it is everyone’s responsibility to ensure that we all enjoy

that right. Applied to the foregoing analysis of the limits of rights talk, and of commons

responses to the challenge of water poverty, the individual ‘rights’ element of Ubuntu, is

protected (albeit incompletely) through legislation, policy, and the work of the courts. While in

service of the ‘responsibilities’ aspect of Ubuntu, commons thinking (perhaps particularly in

conjunction with municipal or NGO facilitation) provides a framework within which people’s

co-responsibility (the responsibility that each member of a community owes to everyone else)

can be productively expressed. To summarise, attempts to reimagine the application of the

right of access to sufficient water more fully, and in more sustainable and equitable ways, would

benefit from meditating on Ubuntu’s central insights around the interdependency of everyone,

and the consequent interconnection between people’s rights and their responsibilities.

994


254

6.3.2 Revisiting water governance in the Anthropocene’s dark light

As well as Ubuntu’s pre-modern wisdom, more recent insights from legal scholarship,

sociological and cultural thought, must also be considered if serious suggestions on the future

shape of water governance are to be proffered. These insights have been catalysed by

environmental exigencies that are connected to the geological phenomenon of the

Anthropocene.

The Anthropocene was introduced in Chapter Two (see 2.5.1), and its potential impact on

water governance was briefly noted. The Anthropocene is a proposed new geological epoch,

defined by the claim that humanity has become a geological agent in much the same way as

volcanoes and meteors, capable of influencing the Earth and its systems. Regardless of its

current unconfirmed geological status, the Anthropocene has caught the attention of scholars

across social and natural scientific disciplines, literature and the arts, and is becoming a popular

lens through which to consider past, present and future global environmental change, and its

impact at every level of society.995

The physical effects of the Anthropocene on water are not yet fully understood, although

driven by climate change, and by excessive human interference with water systems, less

predictable weather patterns (causing drought and heavy rainfall), pollution and salination are

all beginning to adversely affect water supplies. This is causing manifold consequences for

human and non-human life, including food security, sanitation, health and economic

development, ecosystems degradation and species extinction.996

While such emerging realities compel any efforts to reappraise the design and praxis of water

governance towards more eco-sensitive directions, it is the social and cultural consequences of

the Anthropocene that are just as important for the focus of this thesis, and its conclusions. As

Robinson reminds us, debate around determining the existence of the Anthropocene ‘is a

scientific one, not a socio-economic or cultural determination, yet its greatest implications may

lie in the realm of the social sciences’.997

Accordingly, the Anthropocene has already generated a

trans-disciplinary platform upon which to bridge the prevailing divide between the ‘social world’

of philosophy, anthropology, sociology, politics, law and economics, and the ‘material world’ of

995

The Anthropocene ‘is not just a new way to look at the past; it [also] strongly affects the future’. See L Robin &

W Steffen ‘History for the Anthropocene’ (2007) 5/5 History Compass 1694-1719, 1699. 996

S Meisch ‘The need for a value-reflexive governance of water in the Anthropocene’ in A Bhaduri et al (eds) The

Global Water System in the Anthropocene (Springer International Publishing, 2014) 427-437, 427. 997

N Robinson, ‘Fundamental Principles of Law for the Anthropocene?’ (2014) 44 Environmental Policy and Law

13-27, 13.

255

engineering and natural science.998

In so doing, old separations are collapsing, alongside old

assumptions about the Earth’s stability and resilience.

Formally, the Holocene Epoch denotes the relatively stable period of the past 10 000 - 12 000

years that has been characterised by extraordinarily good living conditions enabling the

development of modern societies in a world of seven billion people.999

Every piece of

documented human thought and experience, in literature, philosophy, history, religious texts,

and laws, has been written during this epoch,1000

and therefore, has arisen from within this

context of relative stability. As climate change challenges this stability, and Earth systems reach

the limits of sustainability, many of the assumptions implicit within human thought (and within

the operative logic of human institutions) about the constancy and permanence of the natural

world, are being challenged. In turn, this is challenging the very ways in which humanity can

behave within the world. This is generating radical reappraisals of how we live (and where we

live, and even why we live), which are beginning to affect individual and societal values

regarding trade, travel, consumption, architecture, politics, religion, and much more. As Klein

succinctly puts it ‘this changes everything’.1001

The Anthropocene is also pervading legal discourse, particularly at the intersection of

environmental law and human rights. This is offering new perspectives for lawyers to consider

the role of law in mediating the human-environment interface.1002

Because of the importance

that law plays in regulating human-to-human behaviour, as well as human’s interactions with the

non-human world, it is essential that the Anthropocene’s interrogative light be brought to bear

here. Law ‘is deeply implicated in the systems that have caused the end to the Holocene, and at

998

O Uhrqvist & E Lövbrand ‘Seeing and Knowing the Earth as a System: Tracing the History of the Earth System

Science Partnership’. Available at <http://www.earthsystemgovernance.org/ac2009/papers/AC2009-0107.pdf> (Last


The Holocene started approximately 12 000 years ago and was characterized by stable and temperate climatic

and environmental conditions which have (mostly) allowed human development to flourish. See E Swyngedouw

‘Whose Environment? The End of Nature, Climate Change and the Process of Post-Politicization’ (2011) XIV

Ambiente & Sociedade Campinas 69; J Rockström et al ‘A Safe Operating Space for Humanity’ (2009) 461

Nature 472-475. 1000

Y N Harari Sapiens: A Brief History of Human Kind (Harvill Secker, 2014) viii. 1001

N Klein This Changes Everything: Capitalism vs. the Climate (Simon & Schuster, 2014). 1002

See generally: N Robinson ‘Beyond Sustainability: Environmental Management for the Anthropocene Epoch’

(2012) 12/3 Journal of Public Affairs 181-194; L J Kotzé, ‘Human Rights and the Environment in the

Anthropocene’ (2014) The Anthropocene Review 1-24; J Ebbesson, ‘Social-Ecological Security and International

Law in the Anthropocene’ in Jonas Ebbesson et al (eds), International Law and Changing Perceptions of Security:

Liber Amicorum Said Mahmoudi (Brill, 2014) 71-92; A Philippopoulos-Mihalopoulos, Spatial Justice: Body,

Lawscape, Atmosphere (Routledge, 2014); K Rakhyun & K Bosselmann ‘International Environmental Law in the

Anthropocene: Towards a Purposive System of Multilateral Environmental Agreements’ (2013) 2 Transnational

Environmental Law 285-309; K Scott ‘International Law in the Anthropocene: Responding to the Geoengineering

Challenge’ (2013) 34/2 Michigan Journal of International Law 309-358.

256

once is central also to the reforms needed to cope with the emerging Anthropocene’.1003

Applying this realisation to water governance - and in particular to the question of how law can

help to achieve access to sufficient water for everyone - should lead us to a deep reappraisal of

what the role of law (here relating to water governance) should be. This reappraisal must be

uninhibited by the assumptions of the dominant (water-as-commodity) paradigm. Instead, it

must break open the prohibitive epistemological closures in the law, and expose legal discourse

to new/old modes of understanding and action, which are more finely calibrated to mediating

the profound social and environmental challenges facing socio-eco-responsible water

governance.

On a more modest scale, this is precisely the impetus behind my efforts to blend people’s

stories of insufficient water with commons thinking, and in so doing, to illustrate how atypical

(non-paradigmatic) approaches to law can be (and are being) applied in order to open up new

perspectives, and new approaches (in this instance for water governance). In short,

acknowledgment of the exigencies of the Anthropocene could be the catalyst needed for a vivid

reimagination of, then a thorough implementation of, modes of water governance that better

realise sustainable, equitable water access for all. But even such ‘new thinking’1004

must not be

allowed to ossify, and so become closed to the perpetual need for contestation (see 5.6).

6.4 Limitations of this thesis, and future research directions

This thesis has limited itself to an enquiry around legal approaches (albeit broadly defined) to

achieving the goal of access to water for everyone in South Africa. For this reason there are a

number of limitations to the thesis that should be noted. First, the positive potential of non-legal

approaches, including technological innovations, and improved water management for instance,

have not been considered in detail. Such approaches, which seek to improve the available

supply and/or quality of water, are already playing important roles in helping to realise access to

sufficient water for many people. Indeed, some productive research on combining water-

1003

N Robinson, ‘Fundamental Principles of Law for the Anthropocene?’ (2014) 44 Environmental Policy and Law

13-27, 13.

1004

A Grear ‘Human Bodies in Material Space: Lived Realities, Eco-crisis and the Search for Transformation’

(2013) 4/2 Journal of Human Rights and the Environment 111-115.

257

monitoring technologies with commons approaches to water governance, is being pursued by

the author, outside this thesis.1005

Second, the particular focus on South Africa has allowed for an in-depth analysis of water

governance in one jurisdiction, and has produced country-specific conclusions. While

undoubtedly there are some similarities between South Africa and neighbouring countries, both

regarding the problems facing people’s access to water, and regarding the status, inspiration and

application of socio-economic rights, any wholesale application of the conclusions of this thesis

to questions of water governance in other countries, should be avoided. The inclusion of an

explicit right of access to sufficient water in the South African Constitution, coupled with the

prescribed relationship between international law and domestic law in the country, and the

distinctive jurisprudence on socio-economic rights that the Constitutional Court has developed,

all emphasise the fact that aspects of water governance in South Africa are unique. But, mindful

of this, the empirical work in this thesis, conducted in Malawi, suggests that commons thinking

may have a role to play in water governance wherever water poverty and community

organisations exist (while conclusions around the limits of rights talk may have less general

application in certain other jurisdictions).

Third, methodologically, the use of semi-structured interviews in water-poor communities

risked reflecting a very narrow, and selective section of experience. This was mitigated

somewhat by using a variety of rural and urban locations, and in so doing, identifying some

issues common to similar locations. Also, the data collected has been triangulated by

considerable additional evidence from other sources. So although selective, it is ‘real’ (as well as

being at odds with positivist legal theory, that would anticipate that conferral of a right to water

should solve people’s problems of water access1006

). But the fact remains that by targeting

communities where access to sufficient water is problematic, the interview data used in this

thesis recounts problems of water access across nearly all participants, despite the fact that in

the country as a whole, access to sufficient water is not (particularly) problematic for the

majority of people. Therefore it is important to be clear that a study of how access to sufficient

water might best be achieved through legal means, will be most directly relevant to the minority

of people in South Africa who are water poor. However, framing the (human) right to water as

a moral claim (see 5.5), compounded by the emerging social and ecological realities of the

1005

See N J Cooper, A Swan, & D Townend ‘A Confluence of New Technology and the Right to Water:

Experience and Potential from South Africa’s Constitution and Commons’ (2014) 16/2 Ethics and Information

Technology 119-134; A Swan & N J Cooper ‘Innovative funding methods for rural communities and their water

pumps’ (2013) 1/2 Water Resources and Rural Development 17-26. 1006

M Freeman Human Rights: An Interdisciplinary Approach (2nd

ed, Polity, 2011) 11.

258

Anthropocene, the question of how to achieve sustainable, equitable access to water should also

be an operative question for everyone. It has already been noted that these interviews are not

intended to be the basis of generalised assumptions. Rather, they illustrate and emphasise

aspects of what is already acknowledged as being the general inadequacies around access to

water in the country. Moreover, they turn attention towards the grass roots, from where

innovative responses to water poverty are emerging.

For various reasons a more in-depth ethnographic study in the communities visited, was not

feasible, although hopefully this is something to pursue in the future. To be able to observe and

reflect upon people’s daily interaction with water and in relation to water over a longer period

of time, would have allowed for greater understanding variously of the complexities and the

mundaneness of navigating life with insufficient water. Also, conducting longer (and multiple)

interviews could have led to deeper insights, which would more easily transcend the surface

level of giving information.1007

Such richer quality interviews would have allowed for more

conversational analysis of the interactional character of the interviews, and of identification and

mediation of the power dynamics present in any interview, but only implicitly discernable in

our relatively short and structured interactions.1008

From the perspective of constitutional theory, the decisions of the Constitutional Court

regarding socio-economic rights, will continue to be watched with interest, particularly to see

whether the proposed conceptual schema of Liminal Constitutionalism can continue to provide

useful analysis. I do not envisage that the Constitutional Court will return to the (perceived)

expansive judgments made in the early days of the Court’s existence. But the considerable

problems of poverty and disenfranchisement that many in the country continue to face, may

compel the Court not to settle into managerialism, but to continue, temporarily at least, to

pursue some degree of transformational activity.

6.5 Concluding thoughts

The right of access to sufficient water in South Africa is widely heralded as an exemplar of the

incorporation of socio-economic rights in domestic constitutional law. This is undoubtedly true,

but only up to a point. Shaped in part by consensus around an international human right to

water, as well as by the desire to remedy the profound inequities of apartheid, the right to water

1007

P Drew, G Raymond & D Weinberg Talk and Interaction in Social Research Methods (Sage Publications,

2006) 28-29. 1008

Ibid.

259

(placed in the context of the Bill of Rights) simultaneously provides an overarching moral

framework (through the elaboration of relevant human rights norms), while remaining

decidedly remote from the experience of many people. At the international level, although the

human right to water has the conceptual potential to reach across boundaries, the extent to

which this has meaningfully occurred remains contentious. In contrast, domestic law is often

considered as a more effective means of giving effect to developmental priorities, particularly in

a context such as South Africa, where constitutional rights arguably better represent on-the-

ground social and economic needs than in other countries. But the interpretation and

application of the domestic, constitutional right of access to sufficient water in South Africa, has

been constrained and inchoate, illustrating the practical and conceptual limits that ‘rights talk’ is

facing. The formalism of law – be that international law or domestic constitutional law – can

never ultimately reflect how the law is perceived and operationalised at the grass-roots level.

International and constitutional provisions have an important symbolic and catalytic role, but

one should hesitate before forming the view that such codification will per se engender full and

complete normative implementation. Clearly, they will not, as the constrained jurisprudence of

the Constitutional Court, and the experiences of water-poor people, bear testament to.

But the story does not end there. Driven in part at least, by the failures of the right to water (at

the international and national levels) to translate into access to sufficient water for everyone,

water-poor communities are beginning to experiment with, and embrace bottom-up commons

approaches to water allocation (and water governance in its broadest sense), governed by more

or less identifiable social norms and vernacular law. The shape, scope and longevity of these

commons exemplars are far from uniform, and the optimum degree of collaboration between

communities, municipal government and NGOs is also unclear. But their very existence

suggests that new thinking is being applied to water governance, and with some positive results.

This should elicit hope, but not surprise:

‘Ex Africa semper aliquid novi’1009

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Appendices

List of Interviews

Complete interview transcripts are available on request. Interviews are listed below in the order that they

appear in the thesis:

# 1 Author’s interview with ‘Gremmah’ Mbongwa.

Okhombe, Kwa-Zulu Natal. April 2010.

# 2 Author’s interview with Jennifer (Soche Water Users’ Association) and Andrew (Water for

People).

Soche, near Blantyre, Malawi. April 2014.

# 3 Author’s interview with Nombuso Khumalo.

Burlington, Kwa-Zulu Natal. April 2010.

# 4 Author’s interview with Siyabonga Mbhele.

Burlington, Kwa-Zulu Natal. February 2010.

# 5 Author’s interview with Sanele.

Burlington, Kwa-Zulu Natal. November 2015.

# 6 Author’s interview with Justice Zak Yacoobs.

University of Kwa-Zulu Natal. April 2014.

# 7 Author’s interview with Mbali Miya and Mpume.

Okhombe, Kwa-Zulu Natal. April 2010.

# 8 Author’s interview with Nombuso Khaba.

Woodford, Kwa-Zulu Natal. February 2010.

# 9 Author’s interview with Vosile and Elizabeth.

Woodford, Kwa-Zulu Natal. February 2010.

# 10 Author’s interview with Sewpersadh Kanthelall.

Verulam, Kwa-Zulu Natal. November 2015.

# 11 Author’s interview with Thandeka.

Msunduze, Kwa-Zulu Natal. November 2015.

# 12 Author’s interview with Sanele.


# 13 Author’s interview with Helen, Thembeka and Phindile.


# 14 Author’s interview with Sbo.


# 15 Author’s interview with Kate Harawa (Water for People).

Blantyre, Malawi. April 2014.

# 16 Author’s interview with Andrew (Water for People).

Blantyre, Malawi. April 2014.

289

# 17 Author’s interview with Pastor Elias Nowa (WUA Executive Chairperson).

Nkolokott, near Blantyre, Malawi. April 2014.

# 18 Author’s interview with Francis (WUA Administrator).

Nkolokott, near Blantyre, Malawi. April 2014.

290

Model information letter

This letter is for use with township residents who have been approached as potential interviewees. The

letter will be offered to participants in English and Afrikaans. The same content will appear in both

versions.

Access to sufficient water in South Africa.

Dear sir/ madam,

You are invited to take part in a research project; ‘Access to sufficient water in South Africa’. Before you

decide whether to take part it is important for you to understand why the research is being done and

what it will involve. Please take time to read the following information carefully and discuss it with others

if you wish. Ask us if there is anything that is not clear or if you would like more information. Take time

to decide whether or not you wish to take part.

The aim of this research is to help us understand how water is accessed for domestic purposes

(drinking, washing, cooking) by township residents and people living in informal settlements in South

Africa. We want to ask questions about whether you have a water supply close to your home; whether

the supply works well; whether the water is expensive; whether you have ever not had enough water to

meet your needs and how that affected you or your family.

The aim of asking all these questions is to try to work out how access to sufficient water can best be

protected for everyone in South Africa.

You have been asked to take part in this research because you have links with Youth With A Mission,

South Africa and because you have been involved in the (…) project in (…) township. I used to work for

Youth With A Mission myself and would really appreciate your help in my research.

Taking part is entirely voluntary. If you would prefer not to take part this will not affect you in any way.

If you do decide to take part you will be given this information sheet to keep. You can change your

mind at any time. You do not have to give a reason.

In order to make interviews easier I would like to record them using a Dictaphone. Once I have

finished all my interviews, I will write up what we talked about and will then destroy the recording. If you

would like to take part in an interview, but don’t want to be recorded, you can say so and your interview

will not be recorded.

If you do take part in this research, we will arrange a time and place for the interview. Interviews will

take place in the area that you live, so you will not need to travel. It is expected that the interview will not

take longer than 30 minutes. You do not need to bring anything with you or prepare anything. But if you

have water bills, it may be helpful to have a look at these to remind you about the price you pay for

water.

I will ask you general questions about your experience accessing water. These will cover the following:

How close are you to your water supply?

Does it work (all the time, some of the time, does it get shut off?)

Do you get all the water you need?

How expensive is it? (can you afford to buy all the water you need or do you buy less than you

need? Do you pay for water at all?)

291

I will listen to what you say and I might ask you for more details or to explain something I don’t

understand. I will also ask you whether you live in the township or in an attached informal settlement.

If you do not know answers to the questions that is fine. If you need a little while to think, that too is

OK. In the interview, if you find that answering any of the questions is upsetting, you are welcome to

take your time, to pause the interview, or to stop it completely. Any recording will be destroyed if you

wish.

You will not receive any payment or reward for taking part in this research. Whilst there are no

immediate benefits for you taking part in the project, it is hoped that this work will contribute to a better

understanding of day-to-day challenges regarding water and may help to shape improvements in the

future.

All the information that we collect about you during the course of the research will be kept strictly

confidential. If you give your name and agree for it to be used to identify your responses, your name

may be used in this thesis, and in future related publications. If you do not wish to be identified in any

reports or publications that come from this research, your contribution will remain anonymous.

This research will form part of a Doctoral Research Thesis. It may also be used in journal articles,

books and other published material. However, it is not possible to provide participants with copies of

any such publications.

This research project has been approved by the School of Law, Research Ethics Committee at the

University of Sheffield, England.

You can contact us for further information using the following details:

Researcher: Nathan Cooper

[email protected]

Research Supervisor: Dr Duncan French

[email protected]

University of Sheffield, School of Law, Bartolome House, Winter Street, Sheffield, S3 7ND, United

Kingdom

Thank you for taking the time to read this.

Nathan Cooper

292

Framework for semi-structured interviews in water-poor communities (interview

schedule)

The following questions, grouped A – E formed the framework for interviews. Questions were

modified, rephrased or not used, depending on each situation. For instance some respondents

who expressed satisfaction with the quality of water they used were not asked whether their

health had been adversely affected by poor quality water.

A How do you access water (for domestic use)? Eg. Standpipe, tap at home, shared tap,

bucket?

Who provides the water? Local authority/ private company/ charity?

B Questions based on the definition of sufficient water in General Comment 15 CESCR

regarding availability, quality and accessibility (physical, economic, non-discriminatory and

information accessibility).

How much water do you use in a day/week? For how many people?

What does it taste/ look/ smell like?

Is your water source very close? If not, who collects it and how?

Do you get an amount of water free? How much do you pay per unit? How much do

you spend a week on water? How much do you earn in a week?

C If residents/communities have experienced insufficient water (as defined by GC15)

How do you make your concerns/complaints known?

Is there involvement from your local MP/ council/ NGO/ advocacy group?

Are people involved in direct action? Informal reconnection? Activist network?

D Has your experience of access to sufficient water changed in recent years? What aspects

of section B?

E What is the wider impact on your life of problems with access to sufficient water?

Health issues? Time/money diverted from...? Education/work-related issues?

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